United States v. Entercom Communications Corp., et al.; Proposed Final Judgment and Competitive Impact Statement, 52319-52331 [2017-24548]

Download as PDF Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Cooperative Research Group on ROS-Industrial ConsortiumAmericas Notice is hereby given that, on October 18, 2017, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Southwest Research Institute— Cooperative Research Group on ROSIndustrial Consortium-Americas (‘‘RICAmericas’’) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its Membership. The notifications were filed for the purpose of extending the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Tormach, Inc., Waunakee, WI, has been added as a party to this venture. No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open and RIC-Americas intends to file additional written notifications disclosing all changes in membership or planned activities. On April 30, 2014, RIC-Americas filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on June 9, 2014 (79 FR 32999). The last notification was filed with the Department on April 7, 2017. A notice was published in the Federal Register pursuant to Section 6(b) of the Act on May 2, 2017 (82 FR 20488). Patricia A. Brink, Director of Civil Enforcement, Antitrust Division. UNITED STATES OF AMERICA, United States Department of Justice, Antitrust Division, 450 Fifth Street NW., Suite 4000, Washington, DC 20530 Plaintiff, v. ENTERCOM COMMUNICATIONS CORP., 401 E. City Avenue, Suite 809, Bala Cynwyd, PA 19004 and CBS CORPORATION, 51 W. 52nd Street, New York, NY 10019 Case No: 1:17–cv–02268 Judge: Boasberg Defendants. BILLING CODE P DEPARTMENT OF JUSTICE asabaliauskas on DSKBBXCHB2PROD with NOTICES Antitrust Division United States v. Entercom Communications Corp., et al.; Proposed Final Judgment and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)–(h), that a proposed Final Judgment, Stipulation, and 18:38 Nov 09, 2017 Jkt 244001 Patricia A. Brink, Director of Civil Enforcement. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [FR Doc. 2017–24545 Filed 11–9–17; 8:45 am] VerDate Sep<11>2014 Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in United States of America v. Entercom Communications Corp., Case No. 1:17–cv–02268. On November 1, 2017, the United States filed a Complaint alleging that Entercom Communications Corp.’s proposed acquisition of CBS Radio, Inc. would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed on the same day as the Complaint, resolves the case by requiring Entercom to divest certain broadcast television stations in Boston, Massachusetts; San Francisco, California; and Sacramento, California. A Competitive Impact Statement filed by the United States describes the Complaint, the proposed Final Judgment, and the industry. Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division’s website at http://www.justice.gov/atr and at the Office of the Clerk of the United States 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. Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division’s website, filed with the Court, and, under certain circumstances, published in the Federal Register. Comments should be directed to Owen M. Kendler, Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, Department of Justice, Washington, DC 20530, (telephone: 202–305–8376). COMPLAINT The United States of America brings this civil action to enjoin the proposed acquisition of CBS Radio, Inc. by Entercom Communications Corporation, PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 52319 and to obtain other equitable relief. The acquisition likely would substantially lessen competition for the sale of radio advertising to advertisers targeting English-language listeners in the Boston, Sacramento, and San Francisco Designated Market Areas (‘‘DMAs’’), in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The United States alleges as follows: I. NATURE OF THE ACTION 1. Pursuant to an Agreement and Plan of Merger dated February 2, 2017, between Entercom, CBS Radio, Inc. and CBS Corporation, Entercom agreed to acquire CBS Radio in a Reverse Morris Trust transaction valued at over $1.6 billion. CBS Radio is a subsidiary of CBS Corporation. 2. Entercom and CBS Radio own and operate broadcast radio stations in various locations throughout the United States, including multiple stations in Boston, Massachusetts, Sacramento, California, and San Francisco, California. Entercom and CBS Radio compete head-to-head for the business of local and national companies that seek to advertise on English-language broadcast radio stations in these three DMAs. 3. As alleged in greater detail below, the proposed acquisition would eliminate this substantial head-to-head competition in Boston, Sacramento, and San Francisco, and likely would result in advertisers paying higher prices for radio advertising. Therefore, the proposed acquisition would violate Section 7 of the Clayton Act, 15 U.S.C. 18, and should be enjoined. II. JURISDICTION, VENUE, AND COMMERCE 4. The United States brings this action under the direction of the Attorney General and pursuant to Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain Entercom and CBS Corp. from violating Section 7 of the Clayton Act, 15 U.S.C. 18. The Court has subject-matter jurisdiction over this action pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345. 5. Entercom and CBS Corporation are engaged in interstate commerce and in activities substantially affecting interstate commerce. They own and operate broadcast radio stations in various locations throughout the United States and sell radio advertising time on those stations to advertisers located throughout the United States. Defendants’ radio advertising sales have a substantial effect upon interstate commerce. E:\FR\FM\13NON1.SGM 13NON1 52320 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices 6. Defendants Entercom and CBS Corporation transact business in the District of Columbia and have consented to venue and personal jurisdiction in this District. Venue is proper in this District under Section 12 of the Clayton Act, 15 U.S.C. 22 and 28 U.S.C. 1391(c). asabaliauskas on DSKBBXCHB2PROD with NOTICES III. THE DEFENDANTS 7. Entercom, a Pennsylvania corporation with its headquarters in Bala Cynwyd, Pennsylvania, is the fourth-largest broadcast radio company in the United States. It has a portfolio of 127 stations in 27 markets. In 2016, Entercom reported net revenues of approximately $460 million. 8. CBS Corporation is incorporated in Delaware and maintains its headquarters in New York, New York. Its wholly-owned subsidiary, CBS Radio, owns 117 stations in 26 DMAs. In 2016, CBS Radio reported net revenues of approximately $1.2 billion. IV. RELEVANT MARKETS 9. Entercom and CBS Radio sell radio advertising time to local and national advertisers that target English-language listeners in the Boston, Sacramento, and San Francisco DMAs. A DMA is a geographical unit in which the Nielsen Company surveys radio listeners in order to furnish radio stations, advertisers, and advertising agencies with data to aid in evaluating radio audiences. DMAs are widely accepted by industry participants as the standard geographic boundaries to use in evaluating radio audience size and demographic composition. A radio station’s advertising rates are directly related to the station’s ability, relative to competing radio stations, to attract listeners within a DMA that have demographic characteristics that advertisers want to reach. 10. The primary source of revenue for Entercom and CBS Radio is the sale of advertising time to local and national advertisers who want to reach listeners in one or more DMAs. Advertising placed on radio stations in a DMA is aimed at reaching listening audiences located in that DMA, and radio stations outside that DMA do not provide effective access to these audiences. 11. Local and national advertisers purchase radio advertising time because they find such advertising valuable, either by itself or as part of a broader mix of advertising on other media platforms. Advertisers use broadcast radio for many reasons, including that radio advertising offers a high level of audience reach, as well as a stable listenership, and it is often a more efficient means than other advertising platforms to reach an advertiser’s target VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 audience at the desired frequency. In addition, radio stations offer certain promotional opportunities to advertisers, such as on-air endorsements by local radio personalities, that advertisers cannot obtain as effectively using other media. 12. Many local and national advertisers consider English-language broadcast radio to be a particularly effective or important means to reach their desired customers, and do not consider advertisements on other media, including non-English-language broadcast radio, digital music streaming services (such as Pandora), and television, to be reasonable substitutes. 13. In addition, radio stations negotiate prices individually with advertisers; consequently, radio stations can charge different advertisers different prices. Radio stations generally can identify advertisers with strong preferences to advertise on radio in a particular language in a specific DMA. Because of this ability to price discriminate among customers, radio stations may charge higher prices to advertisers that view English-language radio advertising in a specific DMA as particularly effective for their needs, while maintaining lower prices for more price-sensitive advertisers. As a result, Entercom and CBS Radio could profitably raise prices to those advertisers that view English-language radio targeting listeners in the Boston, Sacramento, or San Francisco DMAs as an important advertising medium. 14. If there were a small but significant and non-transitory increase in the price of radio advertising time on English-language stations in the Boston, Sacramento, and San Francisco DMAs, advertisers would not reduce their purchases sufficiently to render the price increase unprofitable. Advertisers would not switch enough purchases of advertising time to radio stations outside the DMA, to other media, or to non-English-language radio stations to render the price increase unprofitable. 15. Accordingly, the sale of broadcast radio advertising time to advertisers targeting English-language listeners is a line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act. The Boston, Sacramento, and San Francisco DMAs constitute relevant geographic markets within the meaning of Section 7 of the Clayton Act. V. ANTICOMPETITIVE EFFECTS 16. Post merger, radio station ownership in the Boston, Sacramento and San Francisco DMAs would be highly concentrated. In each of these markets, a small number of station- PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 group owners account for the bulk of the advertising revenues. Entercom’s and CBS Radio’s combined advertising revenue shares would exceed 40% in San Francisco, 50% in Boston, and 55% in Sacramento. 17. As articulated in the Horizontal Merger Guidelines issued by the Department of Justice and the Federal Trade Commission, the HerfindahlHirschman Index (‘‘HHI’’) is a measure of market concentration.1 Market concentration is often one useful indicator of the likely competitive effects of a merger. The more concentrated a market, and the more a transaction would increase concentration in a market, the more likely it is that a transaction would result in a meaningful reduction in competition harming consumers. Mergers resulting in highly concentrated markets (with an HHI in excess of 2,500) that involve an increase in the HHI of more than 200 points are presumed to be likely to enhance market power. 18. Concentration in the Boston DMA would increase substantially as a result of the proposed acquisition: the postacquisition HHI would exceed 3,600 for English-language broadcast radio stations, with an increase of over 1,200 points. 19. Concentration in the Sacramento DMA would increase substantially as a result of the proposed acquisition: the post-acquisition HHI would exceed 4,300 for English-language broadcast radio stations, with an increase of over 1,600 points. 20. Concentration in the San Francisco DMA would increase substantially as a result of the proposed acquisition: the post-acquisition HHI would exceed 2,800 for Englishlanguage broadcast radio stations, with an increase of over 800 points. 21. In addition to increasing concentration, the merger also combines stations that are close substitutes and vigorous head-to-head competitors. Advertisers that use radio to reach their target audiences select radio stations on which to advertise based upon a number of factors including, among others, the 1 See U.S. Dep’t of Justice, Horizontal Merger Guidelines § 5.3 (2010), available at http:// www.justice.gov/atr/public/guidelines/hmg2010.html. The HHI is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (302 + 302 + 202 + 202 = 2,600). It approaches zero when a market is occupied by a large number of firms of relatively equal size and reaches a maximum of 10,000 points when a market is controlled by a single firm. The HHI increases both as the number of firms in the market decreases and as the disparity in size between those firms increases. E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices size of a station’s audience, its demographic composition, and the geographic reach of its broadcast signal. Many advertisers select stations whose listening audiences best correlate to their target audience. If a number of stations, or combinations of stations, broadcasting in the same DMA efficiently reach a particular target audience, advertisers benefit from the competition among those stations to offer better prices and other terms. 22. Entercom and CBS Radio, each of which operates multiple highly-rated radio stations in the Boston, Sacramento, and San Francisco DMAs, are important competitors for listeners and advertisers in those DMAs. From the perspective of many local and national advertisers buying radio advertising time in those DMAs, Entercom and CBS Radio are two of a limited number of station groups whose large and diverse listenership allows advertisers to meet their reach and frequency goals with respect to their target audience. Entercom and CBS Radio compete vigorously to win business from advertisers and substantially constrain each other’s prices. 23. During individual negotiations between advertisers and radio stations, advertisers often provide the stations with information about their advertising needs, including their target audience and the desired frequency and timing of ads. Radio stations have the ability to charge advertisers differing rates based in part on the number and attractiveness of competitive radio stations that can meet a particular advertiser’s specific target needs. During negotiations, advertisers can gain more competitive rates and other terms by ‘‘playing off’’ Entercom stations against CBS Radio stations, either individually or as a cluster. The proposed acquisition would end that competition, resulting in harm to advertisers. 24. Post-acquisition, if Entercom raised prices to those advertisers that buy advertising time on Entercom stations in the Boston, Sacramento and San Francisco DMAs, non-Entercom stations in those DMAs would likely respond with higher prices of their own rather than alter their existing formats to attract the Entercom stations’ listeners and advertisers. Repositioning a station by changing format is costly and risky, with the potential to lose substantial numbers of existing listeners and advertisers. In addition, re-formatting is unlikely to attract in a timely manner sufficient listeners and advertisers to make a price increase unprofitable for Entercom. VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 25. Due to FCC regulation, the lack of available spectrum, and other significant barriers, the entry of new broadcast radio stations into the Boston, Sacramento, and San Francisco DMAs would not be timely, likely, or sufficient to deter the exercise of market power. 26. For all of these reasons, the effect of the proposed acquisition of CBS Radio by Entercom would likely be to lessen competition substantially in violation of Section 7 of the Clayton Act. VI. VIOLATION ALLEGED 27. Entercom’s proposed acquisition of CBS Radio would likely substantially lessen competition in interstate trade and commerce in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, and would likely have the following effects, among others: a) competition in the sale of advertising time on English-language broadcast radio stations in the Boston, Sacramento, and San Francisco DMAs would be substantially lessened; b) competition between Entercom broadcast radio stations and CBS broadcast radio stations in the sale of radio advertising time in the Boston, Sacramento, and San Francisco DMAs would be eliminated; and c) prices for advertising time on English-language radio stations in the Boston, Sacramento, and San Francisco DMAs would likely increase. VII. REQUESTED RELIEF 28. The United States requests that this Court: a) adjudge and decree Entercom’s proposed acquisition of CBS Radio to be unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18; b) permanently enjoin and restrain the Defendants from carrying out the proposed acquisition or from entering into or carrying out any other contract, agreement, plan, or understanding, the effect of which would be to combine CBS Radio with Entercom; c) award the United States the costs of this action; and d) award such other relief to the United States as the Court may deem just and proper. 52321 Donald G. Kempf, Jr. Deputy Assistant Attorney General Antitrust Division /s/ lllllllllllllllllll Patricia A. Brink Director of Civil Enforcement Antitrust Division /s/ lllllllllllllllllll Owen M. Kendler Chief Yvette F. Tarlov Lisa A. Scanlon Assistant Chiefs Media, Entertainment, and Professional Services Section /s/ lllllllllllllllllll Bennett J. Matelson* (D.C. Bar #454551) Mark A. Merva (D.C. Bar #451743) Lauren Riker Adam Speegle Jeffrey Vernon United States Department of Justice, Antitrust Division, Media, Entertainment, and Professional Services Section, 450 Fifth Street, NW, Suite 4000, Washington, DC 20530, Telephone: (202) 616–5871, Facsimile: (202) 514–7308, Email: bennett.matelson@usdoj.gov *Attorney of Record UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA Plaintiff, v. ENTERCOM COMMUNICATIONS CORP. and CBS CORPORATION Defendants. Case No. 1:17–cv–02268 Judge: Boasberg COMPETITIVE IMPACT STATEMENT Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. § 16(b)–(h), plaintiff United States of America (‘‘United States’’) 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 The United States filed a civil antitrust Complaint on November 1, 2017 seeking to enjoin Entercom Communications Corporation’s (‘‘Entercom’’) proposed acquisition of broadcast radio stations from CBS Corporation (‘‘CBS’’). The Complaint alleges that the acquisition’s likely effect would be to increase English-language Dated: November 1, 2017 broadcast radio advertising prices in the Respectfully submitted, following Designated Market Areas FOR PLAINTIFF UNITED STATES: (‘‘DMAs’’) in violation of Section 7 of /s/ lllllllllllllllllll the Clayton Act, 15 U.S.C. § 18: Boston, Makan Delrahim Massachusetts; San Francisco, Assistant Attorney General California; and Sacramento, California Antitrust Division /s/ lllllllllllllllllll (collectively ‘‘the Divestiture Markets’’). At the same time the Complaint was Andrew C. Finch filed, the United States also filed a Hold Principal Deputy Assistant Attorney General Separate Stipulation and Order (‘‘Hold Antitrust Division /s/ lllllllllllllllllll Separate’’) and a proposed Final PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\13NON1.SGM 13NON1 52322 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices Judgment, which are designed to eliminate the anticompetitive effects of the proposed acquisition in the Divestiture Markets. The proposed Final Judgment, which is explained more fully below, requires defendants to divest the following broadcast radio stations (the ‘‘Divestiture Stations’’) to acquirers approved by the United States in a manner that preserves competition: (1) in the Boston DMA: WBZ AM, WBZ FM, WKAF FM, WZLX FM, and WRKO AM; (2) in the San Francisco DMA: KOIT FM, KMVQ FM, KUFX FM, and KBLX FM; and (3) in the Sacramento DMA: KNCI FM, KYMX FM, KZZO FM and KHTK AM. The Hold Separate also requires defendants to take certain steps to ensure that the Divestiture Stations are operated as competitively independent, economically viable and ongoing business concerns, uninfluenced by Entercom, so that competition is maintained until the required divestitures occur. 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. II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION asabaliauskas on DSKBBXCHB2PROD with NOTICES A. The Defendants and the Proposed Acquisition Entercom is incorporated in Pennsylvania and headquartered in Bala Cynwyd, Pennsylvania. Entercom owns and operates 126 broadcast radio stations in 28 metropolitan areas. CBS is organized under the laws of Delaware, with headquarters in New York, New York. CBS owns and operates 116 broadcast radio stations in 26 metropolitan areas. Pursuant to an Agreement and Plan of Merger, dated February 2, 2017, Entercom agreed to acquire all of CBS’s broadcast radio stations. Entercom and CBS compete against one another to win business from local and national advertisers that seek to purchase English-language radio advertising time that targets listeners located in certain DMAs. The proposed transaction between Entercom and CBS would eliminate that competition in the Divestiture Markets. VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 B. Anticompetitive Consequences of the Transaction 1. Broadcast Radio Advertising The Complaint alleges that the sale of English-language broadcast radio advertising time to advertisers targeting listeners located in the Divestiture Markets constitutes a relevant market for analyzing this acquisition under Section 7 of the Clayton Act. Each of the Divestiture Markets constitutes a distinct DMA. A DMA is a geographical unit defined by the Nielsen Company, which surveys radio listeners in order to furnish radio stations, advertisers, and advertising agencies with data to aid in evaluating radio audiences. DMAs are widely accepted by radio stations, advertisers, and advertising agencies as the standard geographic area to use in evaluating radio audience size and demographic composition (primarily age and gender). A radio station’s advertising rates typically are based on the station’s ability, relative to competing radio stations, to attract listening audiences that have certain demographic characteristics that advertisers want to reach. Entercom and CBS broadcast radio stations generate most of their revenues by selling English-language advertising time in particular DMAs to local and national advertisers. Advertising placed on radio stations in a DMA is aimed at reaching listening audiences located in that DMA, and broadcast radio stations outside that DMA do not provide effective access to those audiences. Many local and national advertisers purchase radio advertising time because they find such advertising valuable, either by itself or as part of a mix of media platforms, including television, digital music services, like Pandora Media, Inc. (‘‘Pandora’’), and other advertising platforms. For such advertisers, radio time (a) may be less expensive and more cost-efficient than other media in reaching the advertiser’s target audience (individuals most likely to purchase the advertiser’s products or services) at the desired frequency; or (b) may offer promotional and on-air endorsement opportunities to advertisers that cannot be replicated as effectively using other media. For these and other reasons, many local and national advertisers who purchase radio advertising time view radio as a necessary advertising medium for them or as an important part of advertising campaigns that include other media platforms. Many local and national advertisers also consider English-language radio to be particularly effective or important to reach their desired customers. The PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 advertisers that use English-language radio, either alone or as a mix with other media platforms to reach their target audience, generally do not consider other media, including nonEnglish-language radio, such as Spanish-language radio, for example, to be a reasonable substitute. If there were a small but significant and non-transitory increase in the price (‘‘SSNIP’’) of advertising time on English-language broadcast radio stations in the Divestiture Markets, advertisers would not reduce their purchases sufficiently to render the price increase unprofitable. Advertisers would not switch enough purchases of advertising time to radio stations located outside the Divestiture Markets, to other media, including digital music services, like Pandora, that offer advertising time, or to non-Englishlanguage stations to render the price increase unprofitable. In addition, radio stations negotiate prices individually with advertisers; consequently, radio stations can charge different advertisers different prices. Radio stations generally can identify advertisers with strong preferences to advertise on radio in a specific language and in a specific DMA. Because of this ability to price discriminate among customers, radio stations may charge higher prices to advertisers that view radio in a specific DMA as particularly effective for their needs, while maintaining lower prices for more pricesensitive advertisers in that same DMA. As a result, Entercom and CBS could profitably raise prices to those advertisers that view broadcast radio that targets listeners in the Divestiture Markets as an important advertising medium. 2. Harm to Competition The Complaint alleges that the proposed acquisition likely would lessen competition substantially in interstate trade and commerce, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, and likely would have the following effects, among others: a) Competition in the sale of advertising time on English-language broadcast radio stations in the Divestiture Markets would be lessened substantially; b) competition between Entercom broadcast radio stations and CBS broadcast radio stations in the sale of radio advertising time in the Divestiture Markets would be eliminated; and c) the prices for advertising time on English-language broadcast radio stations in the Divestiture Markets likely would increase. E:\FR\FM\13NON1.SGM 13NON1 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices asabaliauskas on DSKBBXCHB2PROD with NOTICES In the Divestiture Markets, combining the Entercom and CBS broadcast radio stations would give Entercom the following estimated percentages of advertising sales on English-language broadcast radio stations: In Boston, over 50 percent; in San Francisco, over 40 percent; and in Sacramento, over 55 percent. In addition, Entercom’s acquisition of CBS’s broadcast radio stations located in the Divestiture Markets would result in each Divestiture Market becoming highly concentrated. Using the HerfindahlHirschman Index (‘‘HHI’’), a standard measure of market concentration,2 the estimated post-acquisition HHIs and the changes in those HHIs in each of the Divestiture Markets based on revenues can be stated as follows: In Boston, the post-merger HHI would be over 3,600 with an increase in the HHI of over 1,200; in San Francisco, the post-merger HHI would be over 2,800 with an increase of over 800; and in Sacramento, the post-merger HHI would be over 4,300 with an increase of over 1,600. As can be seen, Entercom’s proposed acquisition of CBS’s broadcast radio stations in the Divestiture Markets would result in substantial increases in the HHIs of each market in excess of the 200 points presumed likely to enhance market power under the Horizontal Merger Guidelines issued by the Department of Justice and Federal Trade Commission. The transaction also combines stations that are close substitutes and vigorous head-to-head competitors for advertisers seeking to reach audiences in the Divestiture Markets. Advertisers select radio stations to reach a large percentage of their target audience based upon a number of factors, including, inter alia, the size of the station’s audience, the demographic characteristics of its audience, and the geographic reach of a station’s broadcast signal. Many advertisers seek to reach a large percentage of their target listeners by selecting those stations whose audience best correlates to their target listeners. As stated above, radio stations have the ability to charge different 2 See U.S. Dep’t of Justice, Horizontal Merger Guidelines § 5.3 (2010), available at http:// www.justice.gov/atr/public/guidelines/hmg2010.html. The HHI is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (302 + 302 + 202 + 202 = 2,600). It approaches zero when a market is occupied by a large number of firms of relatively equal size and reaches a maximum of 10,000 points when a market is controlled by a single firm. The HHI increases both as the number of firms in the market decreases and as the disparity in size between those firms increases. VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 advertisers differing prices, but that ability is circumscribed in part by the number and attractiveness of competitive radio stations and station groups in the market that can meet a particular advertiser’s audience reach and frequency needs. When such competition exists, advertisers can negotiate lower prices by ‘‘playing off’’ stations and station groups against each other. Entercom and CBS, each of which operates highly-rated radio stations and clusters of stations in the Divestiture Markets, are important competitors for listeners and advertisers in each of those markets. For many local and national advertisers buying radio advertising time in the Divestiture Markets, Entercom and CBS are two of a limited number of station groups whose large and diverse listenership allows advertisers to meet their reach and frequency goals with respect to their targeted audience. The transaction would end the head-to-head competition between Entercom and CBS station groups in each of the Divestiture Markets. In addition, the loss of head-to-head competition between specific Entercom and CBS radio stations can exacerbate the harm to advertisers for whom those stations are particularly close substitutes. For example, in Boston, Entercom’s WEEI FM, which broadcasts in a sports talk format, is a close substitute for CBS’s WBZ FM, which also broadcasts in a sports talk format. Both stations are among the highestrated in Boston. They share many of the same listeners and have audiences with very similar demographic characteristics that are valuable to many advertisers. Prior to the transaction, if Entercom had increased prices for advertising time on WEEI FM, it likely would have lost sufficient revenues and profits to CBS’s WBZ FM to outweigh the gain from customers willing to accept the price increase. Following the transaction, however, it would recapture the revenues and profits from those advertisers switching to WBZ FM because of a WEEI FM price increase. As a consequence, the transaction would make such a price increase profitable. Entercom could also effect this strategy by increasing WBZ FM’s prices, which could be recaptured to some extent through increased WEEI FM’s sales. Therefore, Entercom likely would raise advertising prices as a result of the transaction. Post-acquisition, if Entercom raised prices to those advertisers that buy advertising time on the Entercom and CBS broadcast radio stations in the Divestiture Markets, non-Entercom stations in those markets would likely PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 52323 respond with higher prices of their own, rather than reposition their stations to induce Entercom’s listeners and advertisers to switch. Repositioning, by changing a station’s format, is costly and risky, with the potential to lose substantial numbers of existing listeners and advertisers. In addition, reformatting is unlikely to attract in a timely manner enough listeners or advertisers to make a price increase unprofitable for Entercom. Finally, the entry of new radio stations into the Divestiture Markets would not be timely, likely, or sufficient to deter the exercise of market power. For all these reasons, the Complaint alleges that Entercom’s proposed acquisition of CBS’ broadcast radio stations would lessen competition substantially in the sale of radio advertising time to advertisers targeting listeners in each of the Divestiture Markets, eliminate head-to-head competition between Entercom and CBS broadcast radio stations in those three markets, and result in increased prices for radio advertisers in those markets, all in violation of Section 7 of the Clayton Act. III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT The proposed Final Judgment requires significant divestitures that will eliminate the anticompetitive effects of the transaction in the Divestiture Markets by maintaining the Divestiture Stations as independent, economically viable competitors. The proposed Final Judgment requires Entercom to divest the Boston broadcast radio stations WBZ AM, WRKO AM, WZLX FM, and WKAF FM to iHeartMedia, and WBZ FM to Beasley Broadcasting. The proposed Final Judgment also requires Entercom to place certain broadcast radio stations into a trust to be operated independent from and in competition with Entercom: In San Francisco, KOIT FM, KMVQ FM, KUFX FM, and KBLX FM; and in Sacramento, KNCI FM, KYMX FM, KZZO FM, and KHTK AM. With respect to those stations, the proposed Final Judgment provides that Entercom can enter into local marketing agreement(s) (‘‘LMAs’’) with Bonneville International. During the term of the LMAs, Bonneville will program each of those radio stations as an independent, ongoing, economically viable, competitive business, with programming and advertising sales of each station held entirely separate, distinct, and apart from those of defendants’ other operations. The LMAs cannot be amended without the prior approval of the United States at its sole discretion. Each LMA will expire with E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES 52324 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices respect to each LMA station upon the consummation of a final agreement to divest that station to an acquirer. The United States has approved iHeartMedia and Beasley as divestiture buyers in Boston, and has approved the LMAs with Bonneville. The divestitures target the loss of competition between Entercom and CBS in each of the Divestiture Markets. Because of the unique positioning of radio stations in Boston, the divestitures will strengthen the ability of each of the remaining major station groups to offer a wider range of attractive demographics to advertisers that seek to target specific demographic groups of listeners on English-language broadcast radio stations in the Boston market. Further, the divestiture of WBZ FM to Beasley Broadcasting preserves the competition for advertisers and listeners between the two important sports radio stations, WEEI FM and WBZ FM. In San Francisco, the divestitures prevent any significant lessening of competition in the San Francisco broadcast radio market. In Sacramento, the divestitures prevent any significant lessening of competition in the Sacramento broadcast radio market. The ‘‘Divestiture Assets’’ are defined in Paragraph II.I of the proposed Final Judgment to cover all assets, tangible or intangible, necessary for the operation of the Divestiture Stations as viable, ongoing commercial broadcast radio stations. With respect to each Divestiture Station, the divestiture will include assets sufficient to satisfy the United States, in its sole discretion, that such assets can and will be used to operate each station as a viable, ongoing, commercial radio business. To ensure that the Divestiture Stations are operated independently from Entercom after the divestiture, Section V and Section XII of the proposed Final Judgment prohibit Entercom from entering into any agreements during the term of the Final Judgment that create a long-term relationship with or any entanglements that affect competition between either Entercom and the acquirers of the Divestiture Stations concerning the Divestiture Assets after the divestiture is completed. Examples of prohibited agreements include agreements to reacquire any part of the Divestiture Assets, agreements to acquire any option to reacquire any part of the Divestiture Assets or to assign the Divestiture Assets to any other person, agreements to enter into any time brokerage agreement, local marketing agreement, joint sales agreement, other cooperative selling arrangement, shared services agreement, or agreements to VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 conduct other business negotiations jointly with the acquirer(s) with respect to the Divestiture Assets, or providing financing or guarantees of financing with respect to the Divestiture Assets, during the term of this Final Judgment. The shared services prohibition does not preclude defendants from continuing or entering into any nonsales-related shared services agreement that is approved in advance by the United States in its sole discretion. The time brokerage agreement prohibition does not preclude defendants from entering into an agreement pursuant to which the acquirers can begin programming the Divestiture Stations immediately after the Court’s approval of the Hold Separate Stipulation and Order in this matter, so long as any agreement with an acquirer expires upon the consummation of a final agreement to divest the Divestiture Assets to the acquirer. Defendants are required to take all steps reasonably necessary to accomplish the divestiture quickly and to cooperate with prospective purchasers. Because transferring the broadcast license for each of the Divestiture Stations requires FCC approval, defendants are specifically required to use their best efforts to obtain all necessary FCC approvals as expeditiously as possible. The divestiture of each of the Divestiture Stations must occur within ninety (90) calendar days after the filing of the Hold Separate Stipulation and Order in this matter or five (5) calendar days after notice of the entry of the Final Judgment by the Court, whichever is later, subject to extension during the pendency of any necessary FCC order pertaining to the divestiture. The United States, in its sole discretion, may agree to one or more extensions of the ninety-day time period not to exceed ninety (90) calendar days in total, and shall notify the Court in such circumstances. In the event that defendants do not accomplish the divestitures within the periods prescribed in the proposed Final Judgment, the proposed Final Judgment provides that the Court, upon application of the United States, will appoint a trustee selected by the United States to effect the divestitures. If a trustee is appointed, the proposed Final Judgment provides that Entercom will pay all costs and expenses of the trustee. The trustee’s commission will be structured to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 describing his or her efforts to accomplish the divestiture of any remaining stations. If the divestiture has not been accomplished after six (6) months, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, to carry out the purpose of the trust, including extending the trust or the 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 United States 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 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, or the last date of publication in a newspaper of the summary of this Competitive Impact Statement, whichever is later. All comments received during this period will be considered by the United States 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. In addition, comments will be posted on the United States Department of Justice, Antitrust Division’s Internet E:\FR\FM\13NON1.SGM 13NON1 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices website and, under certain circumstances, published in the Federal Register. Written comments should be submitted to: Owen M. Kendler, Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, United States Department of Justice, 450 5th Street, N.W. Suite 4000, Washington, DC 20530. The proposed Final Judgment provides that the Court retains jurisdiction over this action, and defendants 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 Entercom’s acquisition of CBS’s broadcast radio stations. The United States is satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition for the sale of broadcast radio advertising in the Boston, San Francisco, and Sacramento DMAs. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the United States would have obtained through litigation, but avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint. asabaliauskas on DSKBBXCHB2PROD with NOTICES VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixtyday 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, in accordance with the statute as amended in 2004, is required to consider: (A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of 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 VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 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). In considering these statutory factors, the court’s inquiry is necessarily a limited one as the government is entitled to ‘‘broad discretion to settle with the defendant within the reaches of the public interest.’’ United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v, U.S. Airways Group, Inc., No. 13–cv–1236 (CKK), 2014–1 Trade Cas. (CCH) ¶ 78, 748, 2014 U.S. Dist. LEXIS 57801, at *7 (D.D.C. Apr. 25, 2014) (noting the court has broad discretion of the adequacy of the relief at issue); United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009-2 Trade Cas. (CCH) ¶ 76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 2009) (noting that the court’s review of a consent judgment is limited and only inquires ‘‘into whether the government’s determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable.’’).3 As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government’s complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, 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) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Courts have held that: 3 The 2004 amendments substituted ‘‘shall’’ for ‘‘may’’ in directing relevant factors for court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. Compare 15 U.S.C. § 16(e) (2004) with 15 U.S.C. § 16(e)(1) (2006); see also SBC Commc’ns, 489 F. Supp. 2d at 11 (concluding that the 2004 amendments ‘‘effected minimal changes’’ to Tunney Act review). PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 52325 [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).4 In determining whether a proposed settlement is in the public interest, a district court ‘‘must accord deference to the government’s predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.’’ SBC Commc’ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at *16 (noting that a court should not reject the proposed remedies because it believes others are preferable); Microsoft, 56 F.3d at 1461 (noting the need for courts to be ‘‘deferential to the government’s predictions as to the effect of the proposed remedies’’); United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States’ prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case). Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. ‘‘[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. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff’d sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also U.S. Airways, 2014 U.S. Dist. 4 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’’); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (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’’’). E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES 52326 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices LEXIS 57801, at *8 (noting that room must be made for the government to grant concessions in the negotiation process for settlements (citing Microsoft, 56 F.3d at 1461)); United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). To meet this standard, the United States ‘‘need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.’’ SBC Commc’ns, 489 F. Supp. 2d at 17. 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; see also U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at *9 (noting that the court must simply determine whether there is a factual foundation for the government’s decisions such that its conclusions regarding the proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (‘‘the ‘public interest’ is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged’’). 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. Microsoft, 56 F.3d at 1459-60. As this Court recently confirmed in SBC Communications, courts ‘‘cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power.’’ SBC Commc’ns, 489 F. Supp. 2d at 15. In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that ‘‘[n]othing 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); see also U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at *9 (indicating that a court is not required to hold an evidentiary hearing or to permit intervenors as part of its review under the Tunney Act). VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: ‘‘[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). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court’s ‘‘scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.’’ SBC Commc’ns, 489 F. Supp. 2d at 11.5 A court can make its public interest determination based on the competitive impact statement and response to public comments alone. U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at *9. PROPOSED FINAL JUDGMENT United States District Court for the District of Columbia I. Jurisdiction WHEREAS, Plaintiff, United States of America, filed its Complaint on November 1, 2017, the United States and defendants Entercom Communications Corp. and CBS Corporation, 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 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 the defendants to assure that competition is not substantially lessened; VIII. DETERMINATIVE DOCUMENTS AND WHEREAS, the United States There are no determinative materials requires defendants to make certain or documents within the meaning of the divestitures for the purpose of APPA that were considered by the remedying the loss of competition United States in formulating the alleged in the Complaint; proposed Final Judgment. AND WHEREAS, defendants have Dated: November 1, 2017 represented to the United States that the divestitures required below can and will Respectfully Submitted, be made, and that defendants will later /s/ Bennett J. Matelson* lllllllllll raise no claim of hardship or difficulty as grounds for asking the Court to Mark A. Merva modify any of the divestiture provisions Trial Attorneys contained below; United States Department of Justice, NOW THEREFORE, before any Antitrust Division Media, Entertainment and testimony is taken, without trial or Professional Services Section, 450 Fifth adjudication of any issue of fact or law, Street NW, Suite 4000, Washington, DC and upon consent of the parties, it is 20530, Tel: (202) 616–5871, Fax: (202) 514– ORDERED, ADJUDGED, AND 7308, Email: bennett.matelson@usdoj.gov DECREED: * Attorney of Record United States of America, Plaintiff, v. Entercom Communications Corp. and CBS Corporation, Defendants. Case No: 1:17–cv–02268 Judge: Boasberg 5 See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone’’); United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ¶ 61,508, at 71,980 (W.D. Mo. 1977) (‘‘Absent 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.’’); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.’’). PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 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. ‘‘Entercom’’ means defendant Entercom Communications Corp., a Pennsylvania corporation headquartered in Bala Cynwyd, Pennsylvania, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. B. ‘‘CBS’’ means defendant CBS Corporation, a Delaware corporation headquartered in New York City, New York, its successors and assigns, and its E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices subsidiaries, including CBS Radio, Inc., divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. C. ‘‘Acquirers’’ means Beasley, iHeartMedia, or another entity to which Entercom divests any Divestiture Assets. D. ‘‘Beasley’’ means Beasley Broadcast Group, Inc., a Delaware Corporation, headquartered in Naples, Florida, its successor and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. E. ‘‘Bonneville’’ means Bonneville International Corporation, headquartered in Salt Lake City, Utah, its successor and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. F. ‘‘iHeartMedia’’ means iHeartMedia, Inc., a Delaware Corporation, headquartered in San Antonio, Texas, its successor and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. G. ‘‘DMA’’ means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Radio BIA Market Report 2016 (1st edition). DMAs are ranked according to the number of households therein and are used by broadcasters, advertisers, and advertising agencies to aid in evaluating radio audience size and composition. H. ‘‘LMA’’ means a local marketing agreement. I. ‘‘Divestiture Assets’’ means 1. The following broadcast radio stations owned by CBS: a. WBZ AM, located in the Boston, Massachusetts DMA (‘‘WBZ AM’’); b. WBZ FM, located in the Boston, Massachusetts DMA (‘‘WBZ FM’’); c. WZLX FM, located in the Boston, Massachusetts DMA (‘‘WZLX FM’’); d. KMVQ FM, located in the San Francisco, California DMA (‘‘KMVQ FM’’); e. KNCI FM, located in the Sacramento, California DMA (‘‘KNCI FM’’); f. KYMX FM, located in the Sacramento, California DMA (‘‘KYMX FM’’); g. KZZO FM, located in the Sacramento, California DMA (‘‘KZZO FM’’); and h. KHTK AM, located in the Sacramento, California DMA (‘‘KHTK AM’’). 2. The following broadcast radio stations owned by Entercom: VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 a. WRKO AM, located in the Boston, Massachusetts DMA (‘‘WRKO AM’’); b. WKAF FM, located in the Boston, Massachusetts DMA (‘‘WKAF FM’’); c. KOIT FM, located in the San Francisco, California DMA (‘‘KOIT FM’’) d. KUFX FM, located in the San Francisco, California DMA (‘‘KUFX FM’’); and e. KBLX FM, located in the San Francisco, California DMA (‘‘KBLX FM’’). 3. All of the assets, tangible or intangible, necessary for the operations of the Divestiture Radio Stations and LMA Radio Stations as viable, ongoing commercial broadcast radio stations, except as otherwise agreed to in writing by the United States Department of Justice, including, but not limited to, all real property (owned or leased), all broadcast equipment, office equipment, office furniture, fixtures, materials, supplies, and other tangible property; all licenses, permits, authorizations, and applications therefore issued by the Federal Communications Commission (‘‘FCC’’) and other government agencies related to the stations; all contracts (including programming contracts and rights), agreements, network agreements, leases, and commitments and understandings of defendants; all trademarks, service marks, trade names, copyrights, patents, slogans, programming materials, and promotional materials relating to the stations (subject to the CBS Brands License Agreements contained in the Agreement and Plan of Merger, dated February 2, 2017, between CBS, CBS Radio, Inc., and Entercom); all customer lists, contracts, accounts, credit records, and all logs and other records maintained by defendants in connection with the stations. J. ‘‘Divestiture Radio Stations’’ means WBZ AM, WBZ FM, WRKO AM, WKAF FM and WZLX FM. K. ‘‘LMA Radio Stations’’ means KOIT FM, KMVQ FM, KUFX FM, KBLX FM, KNCI FM, KYMX FM, KZZO FM and KHTK AM. L. ‘‘Relevant Employee’’ means the personnel involved in the operations of the Divestiture Assets. III. Applicability A. This Final Judgment applies to Entercom and CBS 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. If, prior to complying with Section V and Section VI of this Final Judgment, defendants sell or otherwise dispose of all or substantially all of their assets or PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 52327 of lesser business units that include the Divestiture Assets, defendants shall require the purchaser to be bound by the provisions of this Final Judgment. Entercom need not obtain such an agreement from the acquirers of the assets divested pursuant to this Final Judgment. IV. LMA Entercom is ordered and directed, after the Court’s approval of the Hold Separate Stipulation and Order in this matter, to enter into an LMA(s) with respect to the LMA Radio Stations with Bonneville, the terms of which are subject to the approval of the United States in its sole discretion. Pursuant to the terms of the LMA(s), Entercom will cede to Bonneville the sole right and ability to program and sell advertising on the LMA Radio Stations. The LMA(s) shall last no longer than one year or, with respect to each LMA Radio Station, upon the consummation of a final agreement to divest that station to an Acquirer. Without limiting defendants’ obligations under Section IX, Bonneville will program each of those radio stations as an independent, ongoing, economically viable, competitive business, with programming and advertising sales held entirely separate, distinct, and apart from those of defendants’ other operations. Entercom and Bonneville may not amend the LMA(s) without the prior approval of the United States, in its sole discretion. V. Divestitures A. Entercom is ordered and directed, within ninety (90) calendar days after the signing of the Hold Separate Stipulation and Order in this matter or five (5) calendar days after notice of the entry of this Final Judgment by the Court, whichever is later, to divest the Divestiture Radio Stations in a manner consistent with this Final Judgment to an Acquirer or Acquirers 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 ninety (90) calendar days in total, and shall notify the Court in such circumstances. B. Entercom is ordered and directed, within one hundred and eighty (180) calendar days after the signing of the Hold Separate Stipulation and Order in this matter, to divest the LMA Radio Stations in a manner consistent with this Final Judgment to an Acquirer or Acquirers 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 one hundred and eighty (180) calendar days in total, and E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES 52328 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices shall notify the Court in such circumstances. C. With respect to divestiture of the Divestiture Assets by Entercom or the trustee appointed pursuant to Section VI of this Final Judgment, 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 Divestiture Assets, but no order or other dispositive action by the FCC on such applications has been issued before the end of the period permitted for divestiture, the period permitted for divestiture shall be extended no later than ten (10) business days after the FCC order consenting to the assignment of the Divestiture Assets to the Acquirers has become final. D. Entercom shall use its best efforts to accomplish the divestitures ordered by this Final Judgment as expeditiously as possible, including using their best efforts to obtain all necessary FCC 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 Final Judgment. E. In the event that Entercom is attempting to divest any of the Divestiture Assets to an Acquirer other than Beasley (WBZ FM) or iHeartMedia (WBZ AM, WRKO AM, WKAF FM, and WZLX FM): (1) Entercom promptly shall make known, by usual and customary means, the availability of the Divestiture Assets; (2) Entercom 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; (3) Except with written permission from the United States, Entercom 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 privilege or work-product doctrine; and (4) Entercom shall make available such information to the United States at the same time that such information is made available to any other person. F. Defendants shall provide the Acquirer(s) and the United States information relating to the personnel necessary to the operation or management of the Divestiture Assets to enable the Acquirer(s) to make offers of VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 employment. Defendants will not interfere with any negotiations by the Acquirer(s) to employ any defendant employee whose primary responsibility is the operation or management of the Divestiture Assets. G. From the date of the filing of the Complaint in this matter, defendants may enter into an agreement with an Acquirer or Bonneville pursuant to which defendants may not solicit to hire, or hire, certain Relevant Employees. Any such agreement is subject to the approval of the United States, in its sole discretion. H. Entercom shall permit prospective acquirers of the Divestiture Assets to have reasonable access to personnel and to make inspections of the physical facilities of each of the Divestiture Radio Stations; 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. I. Entercom shall warrant to the Acquirer(s) that each Divestiture Radio Station or LMA Radio Station will be operational on the date of sale. J. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of each of the Divestiture Radio Stations or LMA Radio Stations. K. Entercom shall warrant to the Acquirers that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of each Divestiture Radio Station or LMA Radio Station, and that, following the sale of each 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 each Divestiture Radio Station or LMA Radio Station. L. Unless the United States otherwise consents in writing, the divestiture pursuant to Section V, or by Divestiture Trustee appointed pursuant to Section VI 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 each Divestiture Radio Station or LMA Radio Station can and will be used by the Acquirer(s) as part of a viable, ongoing commercial radio broadcasting business. 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 the United States that the Divestiture Assets will remain viable, and the divestiture of such assets will achieve the purposes of this Final PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 Judgment and remedy the competitive harm alleged in the Complaint. The divestitures, whether pursuant to Section V or Section VI of this Final Judgment: (1) shall be made to Acquirers that, in the United States’ sole judgment, has the intent and capability (including the necessary managerial, operational, technical, and financial capability) of competing effectively in the commercial radio broadcasting business; 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 and defendants gives defendants the ability unreasonably to raise any Acquirer’s costs, to lower any Acquirer’s efficiency, or otherwise to interfere in the ability of any Acquirer to compete effectively. VI. Appointment of Divestiture Trustee A. If defendants have not divested each of the Divestiture Radio Stations within the time period specified in Section V(A) or each of the LMA Radio Stations within the time period specified in Section V(B), defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a Divestiture 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 Divestiture Trustee becomes effective, only the Divestiture Trustee shall have the right to sell the Divestiture Assets. The Divestiture Trustee shall have the power and authority to accomplish the divestiture to an Acquirer(s) acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee, subject to the provisions of Sections V, VI, and VII of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section VI(D) of this Final Judgment, the Divestiture Trustee may hire at the cost and expense of Entercom any investment bankers, attorneys, or other agents, who shall be solely accountable to the Divestiture Trustee, reasonably necessary in the Divestiture Trustee’s judgment to assist in the divestiture. Any such investment bankers, attorneys, or other agents shall serve on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications. C. Defendants shall not object to a sale by the Divestiture Trustee on any ground other than the Divestiture Trustee’s malfeasance. Any such E:\FR\FM\13NON1.SGM 13NON1 asabaliauskas on DSKBBXCHB2PROD with NOTICES Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices objections by defendants must be conveyed in writing to the United States and the Divestiture Trustee within ten (10) calendar days after the Divestiture Trustee has provided the notice required under Section VII. D. The Divestiture Trustee shall serve at the cost and expense of Entercom pursuant to a written agreement, on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications. The Divestiture Trustee shall account for all monies derived from the sale of the assets sold by the Divestiture Trustee and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee’s accounting, including fees for its services yet unpaid and those of any professionals and agents retained by the Divestiture Trustee, all remaining money shall be paid to Entercom and the trust shall then be terminated. The compensation of the Divestiture Trustee and any professionals and agents retained by the Divestiture Trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the Divestiture 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. If the Divestiture Trustee and Entercom are unable to reach agreement on the Divestiture Trustee’s or any agents’ or consultants’ compensation or other terms and conditions of engagement within 14 calendar days of appointment of the Divestiture Trustee, the United States may, in its sole discretion, take appropriate action, including making a recommendation to the Court. The Divestiture Trustee shall, within three (3) business days of hiring any other professionals or agents, provide written notice of such hiring and the rate of compensation to Entercom and the United States. E. Defendants shall use their best efforts to assist the Divestiture Trustee in accomplishing the required divestitures. The Divestiture Trustee and any consultants, accountants, attorneys, and other agents retained by the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and defendants shall develop financial and other information relevant to such business as the Divestiture Trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 action to interfere with or to impede the Divestiture Trustee’s accomplishment of the divestitures. F. After its appointment, the Divestiture Trustee shall file monthly reports with the United States and, as appropriate, the Court setting forth the Divestiture Trustee’s efforts to accomplish the divestitures ordered under this Final Judgment. To the extent such reports contain information that the Divestiture 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 and of the Divestiture Radio Stations or LMA Radio Stations, and shall describe in detail each contact with any such person. The Divestiture Trustee shall maintain full records of all efforts made to divest the Divestiture Assets. G. If the Divestiture Trustee has not accomplished the divestitures ordered under this Final Judgment within six months after its appointment, the Divestiture Trustee shall promptly file with the Court reports setting forth (1) the Divestiture Trustee’s efforts to accomplish the required divestitures, (2) the reasons, in the Divestiture Trustee’s judgment, why the required divestitures have not been accomplished, and (3) the Divestiture Trustee’s recommendations. To the extent such reports contain information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the same time furnish such reports to the United States, which 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 Divestiture Trustee’s appointment by a period requested by the United States. H. If the United States determines that the Divestiture Trustee has ceased to act or failed to act diligently or in a reasonably cost-effective manner, it may recommend the Court appoint a substitute Divestiture Trustee. VII. Notice of Proposed Divestitures A. Within two (2) business days following execution of a definitive divestiture agreement, Entercom or the Divestiture Trustee, whichever is then PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 52329 responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section V or Section VI of this Final Judgment. If the Divestiture 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(s), any other third party, or the Divestiture Trustee, if applicable, additional information concerning the proposed divestiture(s), the proposed Acquirer(s), and any other potential Acquirer. Defendants and the Divestiture 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(s), any third party, and the Divestiture Trustee, whichever is later, the United States shall provide written notice to defendants and the Divestiture Trustee, if there is one, stating whether or not it objects to the proposed 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 VI(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer(s) or upon objection by the United States, a divestiture proposed under Section V or Section VI shall not be consummated. Upon objection by defendants under Section VI(C), a divestiture proposed under Section VI shall not be consummated unless approved by the Court. VIII. Financing Defendants shall not finance all or any part of any purchase made pursuant to Section V or Section VI of this Final Judgment. IX. Hold Separate Until the divestitures required by this Final Judgment have been accomplished, defendants shall take all E:\FR\FM\13NON1.SGM 13NON1 52330 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices asabaliauskas on DSKBBXCHB2PROD with NOTICES steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestitures ordered by this Court. X. 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 V or Section VI, defendants shall deliver to the United States an affidavit as to the fact and manner of their compliance with Section V or Section VI of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar 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 any of the Divestiture Radio Stations, 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 and complete the sale of each of the Divestiture Radio Stations, including efforts to secure FCC or other regulatory approvals, 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 any limitations on information, shall be made within fourteen (14) calendar days of 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 IX of this Final Judgment. Each such affidavit shall also include a description of the efforts defendants have taken to complete the sale of each of the Divestiture Radio Stations, including efforts to secure FCC or other regulatory approvals. 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 VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 after such divestiture has been completed. XI. Compliance Inspection A. For the purposes of determining or securing compliance with this Final Judgment, or of any related orders such as the Hold Separate Stipulation and Order, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an 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 the option of the United States, to require defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data 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 an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit written reports or responses to written interrogatories, 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)(1)(G) of the Federal Rules of Civil Procedure, and defendants mark each PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 pertinent page of such material, ‘‘Subject to claim of protection under Rule 26(c)(1)(g) 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 than a grand jury proceeding). XII. No Reacquisition and Other Prohibited Activities After the Divestiture Assets have been divested to Acquirers acceptable to the United States in its sole discretion, and during the term of the Final Judgment: defendants may not (1) reacquire any part of the Divestiture Assets, (2) acquire any option to reacquire any part of the Divestiture Assets or to assign the Divestiture Assets to any other person, (3) enter into any time brokerage agreement, local marketing agreement, joint sales agreement, or other cooperative selling arrangement with respect to the Divestiture Assets, or (4) provide financing or guarantees of financing with respect to the Divestiture Assets. Entercom may not enter into any shared services agreement or conduct other business negotiations jointly with the Acquirer(s) with respect to the Divestiture Assets. The shared services prohibition does not preclude defendants from continuing or entering into any nonsales-related shared services agreement that is approved in advance by the United States in its sole discretion. If defendants reach an agreement to divest the Divestiture Assets to the Acquirers, defendants may also enter into an agreement, approved in advance by the United States in its sole discretion, under which a defendant cedes to the Acquirer the sole right and ability to program one or more of the Divestiture Assets after the Court’s approval of the Hold Separate Stipulation and Order in this matter, provided that any such time brokerage agreement must expire upon the termination of a final agreement to divest the Divestiture Assets to the Acquirer or upon the consummation of a final agreement to divest the Divestiture Assets to the Acquirer. XIII. 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. E:\FR\FM\13NON1.SGM 13NON1 Federal Register / Vol. 82, No. 217 / Monday, November 13, 2017 / Notices simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, WaveLink, Inc., Huntsville, AL; Spectrum Bullpen, LLC, Orlando, FL; The Catholic University of America, Washington, DC; IERUS Technologies, Inc., Huntsville, AL; Expedition Technology, Inc., Dulles, VA; Stryke XV. Expiration of Final Judgment Industries, LLC, Fort Wayne, IN; Domo Unless this Court grants an extension, Tactical Communications, Pinellas Park, this Final Judgment shall expire ten (10) FL; and Telspan Data, LLC, Concord, CA, have been added as parties to this years from the date of its entry, except venture. that after five years from the date of its Boeing Company, Arlington, VA; JRC entry, this Final Judgment may be Integrated Systems, Inc., Washington, terminated upon notice by the United DC; Signautics Engineering Services, States to the Court and the Parties that LLC, Dunedin, FL; Colorado School of the divestitures have been completed Mines, Golden, CO; Black River Systems and that the continuation of the decree Company, Inc., Utica, NY; Darkblade no longer is necessary or in the public Systems Corporation, Stafford, VA; and interest. ANRA Technologies, LLC, Stone Ridge, XVI. Public Interest Determination VA, have withdrawn from this venture. No other changes have been made in Entry of this Final Judgment is in the either the membership or planned public interest. The parties have activity of the group research project. complied with the requirements of the Membership in this group research Antitrust Procedures and Penalties Act, project remains open, and NSC intends 15 U.S.C § 16, including making copies to file additional written notifications available to the public of this Final disclosing all changes in membership. Judgment, the Competitive Impact On Septmember 24, 2014, NSC filed Statement, and any comments thereon, its original notification pursuant to and the United States’ response to Section 6(a) of the Act. The Department comments. Based upon the record of Justice published a notice in the before the Court, which includes the Federal Register pursuant to Section Competitive Impact Statement and any 6(b) of the Act on November 4, 2014 (79 comments and responses to comments FR 65424). filed with the Court, entry of this Final The last notification was filed with Judgment is in the public interest. the Department on July 12, 2017. A Date: llllllllllllllllll notice was published in the Federal Court approval subject to procedures of Register pursuant to Section 6(b) of the Antitrust Procedures and Penalties Act, 15 Act on August 15, 2017 (82 FR 38710). U.S.C. § 16. XIV. Enforcement of Final Judgment The United States retains and reserves all rights available to it under applicable law to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of this order shall be evaluated under a preponderance of the evidence standard. lllllllllllllllllllll United States District Judge [FR Doc. 2017–24548 Filed 11–9–17; 8:45 am] Patricia A. Brink, Director of Civil Enforcement, Antitrust Division. BILLING CODE 4410–11–P [FR Doc. 2017–24547 Filed 11–9–17; 8:45 am] 52331 Consortium (‘‘VSC8 Consortium’’) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing (1) the identities of the parties to the venture and (2) the nature and objectives of the venture. The notifications were filed for the purpose of invoking the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: General Motors Holdings LLC, Warren, MI; Ford Motor Company, Dearborn, MI; Hyundai-Kia America Technical Center Inc., Superior Township, MI; and Nissan Technical Center North America, Farmington Hills, MI. The general area of VSC8 Consortium’s planned activity is collaboration to conduct or facilitate cooperative research, development, testing, and evaluation procedures to gain further knowledge and understanding of connected vehicle interactions and/or applications for vehicles that are intended to transform surface transportation safety, mobility, and environmental performance through a connected vehicle environment. VSC8 Consortium’s objectives are to promote the interests of the automotive sector while maintaining impartiality, the independence of its members, and vendor neutrality. Patricia A. Brink, Director of Civil Enforcement, Antitrust Division. [FR Doc. 2017–24549 Filed 11–9–17; 8:45 am] BILLING CODE P DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—PDES, Inc. BILLING CODE P DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE asabaliauskas on DSKBBXCHB2PROD with NOTICES Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—National Spectrum Consortium Notice is hereby given that, on October 13, 2017, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), National Spectrum Consortium (‘‘NSC’’) has filed written notifications VerDate Sep<11>2014 18:38 Nov 09, 2017 Jkt 244001 Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Vehicle Safety Communications 8 Consortium Notice is hereby given that, on October 13, 2017, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Vehicle Safety Communications 8 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 Notice is hereby given that, on October 10, 2017, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), PDES, Inc. (‘‘PDES’’), filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Capvidia, Leuven, BELGIUM; Engesis, Rome, ITALY; E:\FR\FM\13NON1.SGM 13NON1

Agencies

[Federal Register Volume 82, Number 217 (Monday, November 13, 2017)]
[Notices]
[Pages 52319-52331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24548]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Entercom Communications Corp., et al.; Proposed 
Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. Entercom Communications Corp., Case No. 1:17-cv-
02268. On November 1, 2017, the United States filed a Complaint 
alleging that Entercom Communications Corp.'s proposed acquisition of 
CBS Radio, Inc. would violate Section 7 of the Clayton Act, 15 U.S.C. 
18. The proposed Final Judgment, filed on the same day as the 
Complaint, resolves the case by requiring Entercom to divest certain 
broadcast television stations in Boston, Massachusetts; San Francisco, 
California; and Sacramento, California. A Competitive Impact Statement 
filed by the United States describes the Complaint, the proposed Final 
Judgment, and the industry.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States 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.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Owen M. Kendler, 
Chief, Media, Entertainment, and Professional Services Section, 
Antitrust Division, Department of Justice, Washington, DC 20530, 
(telephone: 202-305-8376).

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, United States Department of Justice, 
Antitrust Division, 450 Fifth Street NW., Suite 4000, Washington, DC 
20530 Plaintiff, v. ENTERCOM COMMUNICATIONS CORP., 401 E. City 
Avenue, Suite 809, Bala Cynwyd, PA 19004 and CBS CORPORATION, 51 W. 
52nd Street, New York, NY 10019

Case No: 1:17-cv-02268

Judge: Boasberg

Defendants.

COMPLAINT

    The United States of America brings this civil action to enjoin the 
proposed acquisition of CBS Radio, Inc. by Entercom Communications 
Corporation, and to obtain other equitable relief. The acquisition 
likely would substantially lessen competition for the sale of radio 
advertising to advertisers targeting English-language listeners in the 
Boston, Sacramento, and San Francisco Designated Market Areas 
(``DMAs''), in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. 
The United States alleges as follows:

I. NATURE OF THE ACTION

    1. Pursuant to an Agreement and Plan of Merger dated February 2, 
2017, between Entercom, CBS Radio, Inc. and CBS Corporation, Entercom 
agreed to acquire CBS Radio in a Reverse Morris Trust transaction 
valued at over $1.6 billion. CBS Radio is a subsidiary of CBS 
Corporation.
    2. Entercom and CBS Radio own and operate broadcast radio stations 
in various locations throughout the United States, including multiple 
stations in Boston, Massachusetts, Sacramento, California, and San 
Francisco, California. Entercom and CBS Radio compete head-to-head for 
the business of local and national companies that seek to advertise on 
English-language broadcast radio stations in these three DMAs.
    3. As alleged in greater detail below, the proposed acquisition 
would eliminate this substantial head-to-head competition in Boston, 
Sacramento, and San Francisco, and likely would result in advertisers 
paying higher prices for radio advertising. Therefore, the proposed 
acquisition would violate Section 7 of the Clayton Act, 15 U.S.C. 18, 
and should be enjoined.

II. JURISDICTION, VENUE, AND COMMERCE

    4. The United States brings this action under the direction of the 
Attorney General and pursuant to Section 15 of the Clayton Act, as 
amended, 15 U.S.C. 25, to prevent and restrain Entercom and CBS Corp. 
from violating Section 7 of the Clayton Act, 15 U.S.C. 18. The Court 
has subject-matter jurisdiction over this action pursuant to Section 15 
of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 
1345.
    5. Entercom and CBS Corporation are engaged in interstate commerce 
and in activities substantially affecting interstate commerce. They own 
and operate broadcast radio stations in various locations throughout 
the United States and sell radio advertising time on those stations to 
advertisers located throughout the United States. Defendants' radio 
advertising sales have a substantial effect upon interstate commerce.

[[Page 52320]]

    6. Defendants Entercom and CBS Corporation transact business in the 
District of Columbia and have consented to venue and personal 
jurisdiction in this District. Venue is proper in this District under 
Section 12 of the Clayton Act, 15 U.S.C. 22 and 28 U.S.C. 1391(c).

III. THE DEFENDANTS

    7. Entercom, a Pennsylvania corporation with its headquarters in 
Bala Cynwyd, Pennsylvania, is the fourth-largest broadcast radio 
company in the United States. It has a portfolio of 127 stations in 27 
markets. In 2016, Entercom reported net revenues of approximately $460 
million.
    8. CBS Corporation is incorporated in Delaware and maintains its 
headquarters in New York, New York. Its wholly-owned subsidiary, CBS 
Radio, owns 117 stations in 26 DMAs. In 2016, CBS Radio reported net 
revenues of approximately $1.2 billion.

IV. RELEVANT MARKETS

    9. Entercom and CBS Radio sell radio advertising time to local and 
national advertisers that target English-language listeners in the 
Boston, Sacramento, and San Francisco DMAs. A DMA is a geographical 
unit in which the Nielsen Company surveys radio listeners in order to 
furnish radio stations, advertisers, and advertising agencies with data 
to aid in evaluating radio audiences. DMAs are widely accepted by 
industry participants as the standard geographic boundaries to use in 
evaluating radio audience size and demographic composition. A radio 
station's advertising rates are directly related to the station's 
ability, relative to competing radio stations, to attract listeners 
within a DMA that have demographic characteristics that advertisers 
want to reach.
    10. The primary source of revenue for Entercom and CBS Radio is the 
sale of advertising time to local and national advertisers who want to 
reach listeners in one or more DMAs. Advertising placed on radio 
stations in a DMA is aimed at reaching listening audiences located in 
that DMA, and radio stations outside that DMA do not provide effective 
access to these audiences.
    11. Local and national advertisers purchase radio advertising time 
because they find such advertising valuable, either by itself or as 
part of a broader mix of advertising on other media platforms. 
Advertisers use broadcast radio for many reasons, including that radio 
advertising offers a high level of audience reach, as well as a stable 
listenership, and it is often a more efficient means than other 
advertising platforms to reach an advertiser's target audience at the 
desired frequency. In addition, radio stations offer certain 
promotional opportunities to advertisers, such as on-air endorsements 
by local radio personalities, that advertisers cannot obtain as 
effectively using other media.
    12. Many local and national advertisers consider English-language 
broadcast radio to be a particularly effective or important means to 
reach their desired customers, and do not consider advertisements on 
other media, including non-English-language broadcast radio, digital 
music streaming services (such as Pandora), and television, to be 
reasonable substitutes.
    13. In addition, radio stations negotiate prices individually with 
advertisers; consequently, radio stations can charge different 
advertisers different prices. Radio stations generally can identify 
advertisers with strong preferences to advertise on radio in a 
particular language in a specific DMA. Because of this ability to price 
discriminate among customers, radio stations may charge higher prices 
to advertisers that view English-language radio advertising in a 
specific DMA as particularly effective for their needs, while 
maintaining lower prices for more price-sensitive advertisers. As a 
result, Entercom and CBS Radio could profitably raise prices to those 
advertisers that view English-language radio targeting listeners in the 
Boston, Sacramento, or San Francisco DMAs as an important advertising 
medium.
    14. If there were a small but significant and non-transitory 
increase in the price of radio advertising time on English-language 
stations in the Boston, Sacramento, and San Francisco DMAs, advertisers 
would not reduce their purchases sufficiently to render the price 
increase unprofitable. Advertisers would not switch enough purchases of 
advertising time to radio stations outside the DMA, to other media, or 
to non-English-language radio stations to render the price increase 
unprofitable.
    15. Accordingly, the sale of broadcast radio advertising time to 
advertisers targeting English-language listeners is a line of commerce 
and a relevant product market within the meaning of Section 7 of the 
Clayton Act. The Boston, Sacramento, and San Francisco DMAs constitute 
relevant geographic markets within the meaning of Section 7 of the 
Clayton Act.

V. ANTICOMPETITIVE EFFECTS

    16. Post merger, radio station ownership in the Boston, Sacramento 
and San Francisco DMAs would be highly concentrated. In each of these 
markets, a small number of station-group owners account for the bulk of 
the advertising revenues. Entercom's and CBS Radio's combined 
advertising revenue shares would exceed 40% in San Francisco, 50% in 
Boston, and 55% in Sacramento.
    17. As articulated in the Horizontal Merger Guidelines issued by 
the Department of Justice and the Federal Trade Commission, the 
Herfindahl-Hirschman Index (``HHI'') is a measure of market 
concentration.\1\ Market concentration is often one useful indicator of 
the likely competitive effects of a merger. The more concentrated a 
market, and the more a transaction would increase concentration in a 
market, the more likely it is that a transaction would result in a 
meaningful reduction in competition harming consumers. Mergers 
resulting in highly concentrated markets (with an HHI in excess of 
2,500) that involve an increase in the HHI of more than 200 points are 
presumed to be likely to enhance market power.
---------------------------------------------------------------------------

    \1\ See U.S. Dep't of Justice, Horizontal Merger Guidelines 
Sec.  5.3 (2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.html. The HHI is calculated by squaring the 
market share of each firm competing in the market and then summing 
the resulting numbers. For example, for a market consisting of four 
firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 
(30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). It approaches zero when a 
market is occupied by a large number of firms of relatively equal 
size and reaches a maximum of 10,000 points when a market is 
controlled by a single firm. The HHI increases both as the number of 
firms in the market decreases and as the disparity in size between 
those firms increases.
---------------------------------------------------------------------------

    18. Concentration in the Boston DMA would increase substantially as 
a result of the proposed acquisition: the post-acquisition HHI would 
exceed 3,600 for English-language broadcast radio stations, with an 
increase of over 1,200 points.
    19. Concentration in the Sacramento DMA would increase 
substantially as a result of the proposed acquisition: the post-
acquisition HHI would exceed 4,300 for English-language broadcast radio 
stations, with an increase of over 1,600 points.
    20. Concentration in the San Francisco DMA would increase 
substantially as a result of the proposed acquisition: the post-
acquisition HHI would exceed 2,800 for English-language broadcast radio 
stations, with an increase of over 800 points.
    21. In addition to increasing concentration, the merger also 
combines stations that are close substitutes and vigorous head-to-head 
competitors. Advertisers that use radio to reach their target audiences 
select radio stations on which to advertise based upon a number of 
factors including, among others, the

[[Page 52321]]

size of a station's audience, its demographic composition, and the 
geographic reach of its broadcast signal. Many advertisers select 
stations whose listening audiences best correlate to their target 
audience. If a number of stations, or combinations of stations, 
broadcasting in the same DMA efficiently reach a particular target 
audience, advertisers benefit from the competition among those stations 
to offer better prices and other terms.
    22. Entercom and CBS Radio, each of which operates multiple highly-
rated radio stations in the Boston, Sacramento, and San Francisco DMAs, 
are important competitors for listeners and advertisers in those DMAs. 
From the perspective of many local and national advertisers buying 
radio advertising time in those DMAs, Entercom and CBS Radio are two of 
a limited number of station groups whose large and diverse listenership 
allows advertisers to meet their reach and frequency goals with respect 
to their target audience. Entercom and CBS Radio compete vigorously to 
win business from advertisers and substantially constrain each other's 
prices.
    23. During individual negotiations between advertisers and radio 
stations, advertisers often provide the stations with information about 
their advertising needs, including their target audience and the 
desired frequency and timing of ads. Radio stations have the ability to 
charge advertisers differing rates based in part on the number and 
attractiveness of competitive radio stations that can meet a particular 
advertiser's specific target needs. During negotiations, advertisers 
can gain more competitive rates and other terms by ``playing off'' 
Entercom stations against CBS Radio stations, either individually or as 
a cluster. The proposed acquisition would end that competition, 
resulting in harm to advertisers.
    24. Post-acquisition, if Entercom raised prices to those 
advertisers that buy advertising time on Entercom stations in the 
Boston, Sacramento and San Francisco DMAs, non-Entercom stations in 
those DMAs would likely respond with higher prices of their own rather 
than alter their existing formats to attract the Entercom stations' 
listeners and advertisers. Repositioning a station by changing format 
is costly and risky, with the potential to lose substantial numbers of 
existing listeners and advertisers. In addition, re-formatting is 
unlikely to attract in a timely manner sufficient listeners and 
advertisers to make a price increase unprofitable for Entercom.
    25. Due to FCC regulation, the lack of available spectrum, and 
other significant barriers, the entry of new broadcast radio stations 
into the Boston, Sacramento, and San Francisco DMAs would not be 
timely, likely, or sufficient to deter the exercise of market power.
    26. For all of these reasons, the effect of the proposed 
acquisition of CBS Radio by Entercom would likely be to lessen 
competition substantially in violation of Section 7 of the Clayton Act.

VI. VIOLATION ALLEGED

    27. Entercom's proposed acquisition of CBS Radio would likely 
substantially lessen competition in interstate trade and commerce in 
violation of Section 7 of the Clayton Act, 15 U.S.C. Sec.  18, and 
would likely have the following effects, among others:
    a) competition in the sale of advertising time on English-language 
broadcast radio stations in the Boston, Sacramento, and San Francisco 
DMAs would be substantially lessened;
    b) competition between Entercom broadcast radio stations and CBS 
broadcast radio stations in the sale of radio advertising time in the 
Boston, Sacramento, and San Francisco DMAs would be eliminated; and
    c) prices for advertising time on English-language radio stations 
in the Boston, Sacramento, and San Francisco DMAs would likely 
increase.

VII. REQUESTED RELIEF

    28. The United States requests that this Court:
    a) adjudge and decree Entercom's proposed acquisition of CBS Radio 
to be unlawful and in violation of Section 7 of the Clayton Act, 15 
U.S.C. Sec.  18;
    b) permanently enjoin and restrain the Defendants from carrying out 
the proposed acquisition or from entering into or carrying out any 
other contract, agreement, plan, or understanding, the effect of which 
would be to combine CBS Radio with Entercom;
    c) award the United States the costs of this action; and
    d) award such other relief to the United States as the Court may 
deem just and proper.

Dated: November 1, 2017

    Respectfully submitted,

    FOR PLAINTIFF UNITED STATES:
/s/--------------------------------------------------------------------
Makan Delrahim
Assistant Attorney General
Antitrust Division
/s/--------------------------------------------------------------------
Andrew C. Finch
Principal Deputy Assistant Attorney General
Antitrust Division
/s/--------------------------------------------------------------------
Donald G. Kempf, Jr.
Deputy Assistant Attorney General
Antitrust Division
/s/--------------------------------------------------------------------
Patricia A. Brink
Director of Civil Enforcement
Antitrust Division
/s/--------------------------------------------------------------------
Owen M. Kendler
Chief
Yvette F. Tarlov
Lisa A. Scanlon
Assistant Chiefs
Media, Entertainment, and Professional Services Section
/s/--------------------------------------------------------------------
Bennett J. Matelson* (D.C. Bar #454551)
 Mark A. Merva (D.C. Bar #451743)
 Lauren Riker
Adam Speegle
Jeffrey Vernon

United States Department of Justice, Antitrust Division, Media, 
Entertainment, and Professional Services Section, 450 Fifth Street, 
NW, Suite 4000, Washington, DC 20530, Telephone: (202) 616-5871, 
Facsimile: (202) 514-7308, Email: bennett.matelson@usdoj.gov

*Attorney of Record

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA Plaintiff, v. ENTERCOM COMMUNICATIONS 
CORP. and CBS CORPORATION Defendants.
Case No. 1:17-cv-02268
Judge: Boasberg

COMPETITIVE IMPACT STATEMENT

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. Sec.  16(b)-(h), plaintiff 
United States of America (``United States'') 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

    The United States filed a civil antitrust Complaint on November 1, 
2017 seeking to enjoin Entercom Communications Corporation's 
(``Entercom'') proposed acquisition of broadcast radio stations from 
CBS Corporation (``CBS''). The Complaint alleges that the acquisition's 
likely effect would be to increase English-language broadcast radio 
advertising prices in the following Designated Market Areas (``DMAs'') 
in violation of Section 7 of the Clayton Act, 15 U.S.C. Sec.  18: 
Boston, Massachusetts; San Francisco, California; and Sacramento, 
California (collectively ``the Divestiture Markets'').
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate'') and a 
proposed Final

[[Page 52322]]

Judgment, which are designed to eliminate the anticompetitive effects 
of the proposed acquisition in the Divestiture Markets. The proposed 
Final Judgment, which is explained more fully below, requires 
defendants to divest the following broadcast radio stations (the 
``Divestiture Stations'') to acquirers approved by the United States in 
a manner that preserves competition: (1) in the Boston DMA: WBZ AM, WBZ 
FM, WKAF FM, WZLX FM, and WRKO AM; (2) in the San Francisco DMA: KOIT 
FM, KMVQ FM, KUFX FM, and KBLX FM; and (3) in the Sacramento DMA: KNCI 
FM, KYMX FM, KZZO FM and KHTK AM. The Hold Separate also requires 
defendants to take certain steps to ensure that the Divestiture 
Stations are operated as competitively independent, economically viable 
and ongoing business concerns, uninfluenced by Entercom, so that 
competition is maintained until the required divestitures occur.
    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.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION

A. The Defendants and the Proposed Acquisition

    Entercom is incorporated in Pennsylvania and headquartered in Bala 
Cynwyd, Pennsylvania. Entercom owns and operates 126 broadcast radio 
stations in 28 metropolitan areas.
    CBS is organized under the laws of Delaware, with headquarters in 
New York, New York. CBS owns and operates 116 broadcast radio stations 
in 26 metropolitan areas.
    Pursuant to an Agreement and Plan of Merger, dated February 2, 
2017, Entercom agreed to acquire all of CBS's broadcast radio stations.
    Entercom and CBS compete against one another to win business from 
local and national advertisers that seek to purchase English-language 
radio advertising time that targets listeners located in certain DMAs. 
The proposed transaction between Entercom and CBS would eliminate that 
competition in the Divestiture Markets.

B. Anticompetitive Consequences of the Transaction

1. Broadcast Radio Advertising
    The Complaint alleges that the sale of English-language broadcast 
radio advertising time to advertisers targeting listeners located in 
the Divestiture Markets constitutes a relevant market for analyzing 
this acquisition under Section 7 of the Clayton Act. Each of the 
Divestiture Markets constitutes a distinct DMA. A DMA is a geographical 
unit defined by the Nielsen Company, which surveys radio listeners in 
order to furnish radio stations, advertisers, and advertising agencies 
with data to aid in evaluating radio audiences. DMAs are widely 
accepted by radio stations, advertisers, and advertising agencies as 
the standard geographic area to use in evaluating radio audience size 
and demographic composition (primarily age and gender). A radio 
station's advertising rates typically are based on the station's 
ability, relative to competing radio stations, to attract listening 
audiences that have certain demographic characteristics that 
advertisers want to reach.
    Entercom and CBS broadcast radio stations generate most of their 
revenues by selling English-language advertising time in particular 
DMAs to local and national advertisers. Advertising placed on radio 
stations in a DMA is aimed at reaching listening audiences located in 
that DMA, and broadcast radio stations outside that DMA do not provide 
effective access to those audiences.
    Many local and national advertisers purchase radio advertising time 
because they find such advertising valuable, either by itself or as 
part of a mix of media platforms, including television, digital music 
services, like Pandora Media, Inc. (``Pandora''), and other advertising 
platforms. For such advertisers, radio time (a) may be less expensive 
and more cost-efficient than other media in reaching the advertiser's 
target audience (individuals most likely to purchase the advertiser's 
products or services) at the desired frequency; or (b) may offer 
promotional and on-air endorsement opportunities to advertisers that 
cannot be replicated as effectively using other media. For these and 
other reasons, many local and national advertisers who purchase radio 
advertising time view radio as a necessary advertising medium for them 
or as an important part of advertising campaigns that include other 
media platforms.
    Many local and national advertisers also consider English-language 
radio to be particularly effective or important to reach their desired 
customers. The advertisers that use English-language radio, either 
alone or as a mix with other media platforms to reach their target 
audience, generally do not consider other media, including non-English-
language radio, such as Spanish-language radio, for example, to be a 
reasonable substitute.
    If there were a small but significant and non-transitory increase 
in the price (``SSNIP'') of advertising time on English-language 
broadcast radio stations in the Divestiture Markets, advertisers would 
not reduce their purchases sufficiently to render the price increase 
unprofitable. Advertisers would not switch enough purchases of 
advertising time to radio stations located outside the Divestiture 
Markets, to other media, including digital music services, like 
Pandora, that offer advertising time, or to non-English-language 
stations to render the price increase unprofitable.
    In addition, radio stations negotiate prices individually with 
advertisers; consequently, radio stations can charge different 
advertisers different prices. Radio stations generally can identify 
advertisers with strong preferences to advertise on radio in a specific 
language and in a specific DMA. Because of this ability to price 
discriminate among customers, radio stations may charge higher prices 
to advertisers that view radio in a specific DMA as particularly 
effective for their needs, while maintaining lower prices for more 
price-sensitive advertisers in that same DMA. As a result, Entercom and 
CBS could profitably raise prices to those advertisers that view 
broadcast radio that targets listeners in the Divestiture Markets as an 
important advertising medium.
2. Harm to Competition
    The Complaint alleges that the proposed acquisition likely would 
lessen competition substantially in interstate trade and commerce, in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18, and likely 
would have the following effects, among others:
    a) Competition in the sale of advertising time on English-language 
broadcast radio stations in the Divestiture Markets would be lessened 
substantially;
    b) competition between Entercom broadcast radio stations and CBS 
broadcast radio stations in the sale of radio advertising time in the 
Divestiture Markets would be eliminated; and
    c) the prices for advertising time on English-language broadcast 
radio stations in the Divestiture Markets likely would increase.

[[Page 52323]]

    In the Divestiture Markets, combining the Entercom and CBS 
broadcast radio stations would give Entercom the following estimated 
percentages of advertising sales on English-language broadcast radio 
stations: In Boston, over 50 percent; in San Francisco, over 40 
percent; and in Sacramento, over 55 percent. In addition, Entercom's 
acquisition of CBS's broadcast radio stations located in the 
Divestiture Markets would result in each Divestiture Market becoming 
highly concentrated. Using the Herfindahl-Hirschman Index (``HHI''), a 
standard measure of market concentration,\2\ the estimated post-
acquisition HHIs and the changes in those HHIs in each of the 
Divestiture Markets based on revenues can be stated as follows: In 
Boston, the post-merger HHI would be over 3,600 with an increase in the 
HHI of over 1,200; in San Francisco, the post-merger HHI would be over 
2,800 with an increase of over 800; and in Sacramento, the post-merger 
HHI would be over 4,300 with an increase of over 1,600. As can be seen, 
Entercom's proposed acquisition of CBS's broadcast radio stations in 
the Divestiture Markets would result in substantial increases in the 
HHIs of each market in excess of the 200 points presumed likely to 
enhance market power under the Horizontal Merger Guidelines issued by 
the Department of Justice and Federal Trade Commission.
---------------------------------------------------------------------------

    \2\ See U.S. Dep't of Justice, Horizontal Merger Guidelines 
Sec.  5.3 (2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.html. The HHI is calculated by squaring the 
market share of each firm competing in the market and then summing 
the resulting numbers. For example, for a market consisting of four 
firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 
(30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). It approaches zero when a 
market is occupied by a large number of firms of relatively equal 
size and reaches a maximum of 10,000 points when a market is 
controlled by a single firm. The HHI increases both as the number of 
firms in the market decreases and as the disparity in size between 
those firms increases.
---------------------------------------------------------------------------

    The transaction also combines stations that are close substitutes 
and vigorous head-to-head competitors for advertisers seeking to reach 
audiences in the Divestiture Markets. Advertisers select radio stations 
to reach a large percentage of their target audience based upon a 
number of factors, including, inter alia, the size of the station's 
audience, the demographic characteristics of its audience, and the 
geographic reach of a station's broadcast signal. Many advertisers seek 
to reach a large percentage of their target listeners by selecting 
those stations whose audience best correlates to their target 
listeners. As stated above, radio stations have the ability to charge 
different advertisers differing prices, but that ability is 
circumscribed in part by the number and attractiveness of competitive 
radio stations and station groups in the market that can meet a 
particular advertiser's audience reach and frequency needs. When such 
competition exists, advertisers can negotiate lower prices by ``playing 
off'' stations and station groups against each other. Entercom and CBS, 
each of which operates highly-rated radio stations and clusters of 
stations in the Divestiture Markets, are important competitors for 
listeners and advertisers in each of those markets. For many local and 
national advertisers buying radio advertising time in the Divestiture 
Markets, Entercom and CBS are two of a limited number of station groups 
whose large and diverse listenership allows advertisers to meet their 
reach and frequency goals with respect to their targeted audience. The 
transaction would end the head-to-head competition between Entercom and 
CBS station groups in each of the Divestiture Markets.
    In addition, the loss of head-to-head competition between specific 
Entercom and CBS radio stations can exacerbate the harm to advertisers 
for whom those stations are particularly close substitutes. For 
example, in Boston, Entercom's WEEI FM, which broadcasts in a sports 
talk format, is a close substitute for CBS's WBZ FM, which also 
broadcasts in a sports talk format. Both stations are among the 
highest-rated in Boston. They share many of the same listeners and have 
audiences with very similar demographic characteristics that are 
valuable to many advertisers. Prior to the transaction, if Entercom had 
increased prices for advertising time on WEEI FM, it likely would have 
lost sufficient revenues and profits to CBS's WBZ FM to outweigh the 
gain from customers willing to accept the price increase. Following the 
transaction, however, it would recapture the revenues and profits from 
those advertisers switching to WBZ FM because of a WEEI FM price 
increase. As a consequence, the transaction would make such a price 
increase profitable. Entercom could also effect this strategy by 
increasing WBZ FM's prices, which could be recaptured to some extent 
through increased WEEI FM's sales. Therefore, Entercom likely would 
raise advertising prices as a result of the transaction.
    Post-acquisition, if Entercom raised prices to those advertisers 
that buy advertising time on the Entercom and CBS broadcast radio 
stations in the Divestiture Markets, non-Entercom stations in those 
markets would likely respond with higher prices of their own, rather 
than reposition their stations to induce Entercom's listeners and 
advertisers to switch. Repositioning, by changing a station's format, 
is costly and risky, with the potential to lose substantial numbers of 
existing listeners and advertisers. In addition, reformatting is 
unlikely to attract in a timely manner enough listeners or advertisers 
to make a price increase unprofitable for Entercom. Finally, the entry 
of new radio stations into the Divestiture Markets would not be timely, 
likely, or sufficient to deter the exercise of market power.
    For all these reasons, the Complaint alleges that Entercom's 
proposed acquisition of CBS' broadcast radio stations would lessen 
competition substantially in the sale of radio advertising time to 
advertisers targeting listeners in each of the Divestiture Markets, 
eliminate head-to-head competition between Entercom and CBS broadcast 
radio stations in those three markets, and result in increased prices 
for radio advertisers in those markets, all in violation of Section 7 
of the Clayton Act.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment requires significant divestitures that 
will eliminate the anticompetitive effects of the transaction in the 
Divestiture Markets by maintaining the Divestiture Stations as 
independent, economically viable competitors. The proposed Final 
Judgment requires Entercom to divest the Boston broadcast radio 
stations WBZ AM, WRKO AM, WZLX FM, and WKAF FM to iHeartMedia, and WBZ 
FM to Beasley Broadcasting. The proposed Final Judgment also requires 
Entercom to place certain broadcast radio stations into a trust to be 
operated independent from and in competition with Entercom: In San 
Francisco, KOIT FM, KMVQ FM, KUFX FM, and KBLX FM; and in Sacramento, 
KNCI FM, KYMX FM, KZZO FM, and KHTK AM. With respect to those stations, 
the proposed Final Judgment provides that Entercom can enter into local 
marketing agreement(s) (``LMAs'') with Bonneville International. During 
the term of the LMAs, Bonneville will program each of those radio 
stations as an independent, ongoing, economically viable, competitive 
business, with programming and advertising sales of each station held 
entirely separate, distinct, and apart from those of defendants' other 
operations. The LMAs cannot be amended without the prior approval of 
the United States at its sole discretion. Each LMA will expire with

[[Page 52324]]

respect to each LMA station upon the consummation of a final agreement 
to divest that station to an acquirer. The United States has approved 
iHeartMedia and Beasley as divestiture buyers in Boston, and has 
approved the LMAs with Bonneville.
    The divestitures target the loss of competition between Entercom 
and CBS in each of the Divestiture Markets.
    Because of the unique positioning of radio stations in Boston, the 
divestitures will strengthen the ability of each of the remaining major 
station groups to offer a wider range of attractive demographics to 
advertisers that seek to target specific demographic groups of 
listeners on English-language broadcast radio stations in the Boston 
market. Further, the divestiture of WBZ FM to Beasley Broadcasting 
preserves the competition for advertisers and listeners between the two 
important sports radio stations, WEEI FM and WBZ FM.
    In San Francisco, the divestitures prevent any significant 
lessening of competition in the San Francisco broadcast radio market.
    In Sacramento, the divestitures prevent any significant lessening 
of competition in the Sacramento broadcast radio market.
    The ``Divestiture Assets'' are defined in Paragraph II.I of the 
proposed Final Judgment to cover all assets, tangible or intangible, 
necessary for the operation of the Divestiture Stations as viable, 
ongoing commercial broadcast radio stations. With respect to each 
Divestiture Station, the divestiture will include assets sufficient to 
satisfy the United States, in its sole discretion, that such assets can 
and will be used to operate each station as a viable, ongoing, 
commercial radio business.
    To ensure that the Divestiture Stations are operated independently 
from Entercom after the divestiture, Section V and Section XII of the 
proposed Final Judgment prohibit Entercom from entering into any 
agreements during the term of the Final Judgment that create a long-
term relationship with or any entanglements that affect competition 
between either Entercom and the acquirers of the Divestiture Stations 
concerning the Divestiture Assets after the divestiture is completed. 
Examples of prohibited agreements include agreements to reacquire any 
part of the Divestiture Assets, agreements to acquire any option to 
reacquire any part of the Divestiture Assets or to assign the 
Divestiture Assets to any other person, agreements to enter into any 
time brokerage agreement, local marketing agreement, joint sales 
agreement, other cooperative selling arrangement, shared services 
agreement, or agreements to conduct other business negotiations jointly 
with the acquirer(s) with respect to the Divestiture Assets, or 
providing financing or guarantees of financing with respect to the 
Divestiture Assets, during the term of this Final Judgment. The shared 
services prohibition does not preclude defendants from continuing or 
entering into any non-sales-related shared services agreement that is 
approved in advance by the United States in its sole discretion. The 
time brokerage agreement prohibition does not preclude defendants from 
entering into an agreement pursuant to which the acquirers can begin 
programming the Divestiture Stations immediately after the Court's 
approval of the Hold Separate Stipulation and Order in this matter, so 
long as any agreement with an acquirer expires upon the consummation of 
a final agreement to divest the Divestiture Assets to the acquirer.
    Defendants are required to take all steps reasonably necessary to 
accomplish the divestiture quickly and to cooperate with prospective 
purchasers. Because transferring the broadcast license for each of the 
Divestiture Stations requires FCC approval, defendants are specifically 
required to use their best efforts to obtain all necessary FCC 
approvals as expeditiously as possible. The divestiture of each of the 
Divestiture Stations must occur within ninety (90) calendar days after 
the filing of the Hold Separate Stipulation and Order in this matter or 
five (5) calendar days after notice of the entry of the Final Judgment 
by the Court, whichever is later, subject to extension during the 
pendency of any necessary FCC order pertaining to the divestiture. The 
United States, in its sole discretion, may agree to one or more 
extensions of the ninety-day time period not to exceed ninety (90) 
calendar days in total, and shall notify the Court in such 
circumstances.
    In the event that defendants do not accomplish the divestitures 
within the periods prescribed in the proposed Final Judgment, the 
proposed Final Judgment provides that the Court, upon application of 
the United States, will appoint a trustee selected by the United States 
to effect the divestitures. If a trustee is appointed, the proposed 
Final Judgment provides that Entercom will pay all costs and expenses 
of the trustee. The trustee's commission will be structured to provide 
an incentive for the trustee based on the price obtained and the speed 
with which the divestiture is accomplished. After his or her 
appointment becomes effective, the trustee will file monthly reports 
with the Court and the United States describing his or her efforts to 
accomplish the divestiture of any remaining stations. If the 
divestiture has not been accomplished after six (6) months, the trustee 
and the United States will make recommendations to the Court, which 
shall enter such orders as appropriate, to carry out the purpose of the 
trust, including extending the trust or the term of the trustee's 
appointment.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Section 4 of the Clayton Act, 15 U.S.C. Sec.  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. 
Sec.  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 United States 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 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, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States 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. In 
addition, comments will be posted on the United States Department of 
Justice, Antitrust Division's Internet

[[Page 52325]]

website and, under certain circumstances, published in the Federal 
Register.
    Written comments should be submitted to: Owen M. Kendler, Chief, 
Media, Entertainment, and Professional Services Section, Antitrust 
Division, United States Department of Justice, 450 5th Street, N.W. 
Suite 4000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and defendants 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 Entercom's acquisition of 
CBS's broadcast radio stations. The United States is satisfied, 
however, that the divestiture of assets described in the proposed Final 
Judgment will preserve competition for the sale of broadcast radio 
advertising in the Boston, San Francisco, and Sacramento DMAs. Thus, 
the proposed Final Judgment would achieve all or substantially all of 
the relief the United States would have obtained through litigation, 
but avoids the time, expense, and uncertainty of a full trial on the 
merits of the Complaint.

VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-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, in accordance with the statute as amended in 
2004, is required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of 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. Sec.  16(e)(1)(A) & (B). In considering these statutory 
factors, the court's inquiry is necessarily a limited one as the 
government is entitled to ``broad discretion to settle with the 
defendant within the reaches of the public interest.'' United States v. 
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act); United 
States v, U.S. Airways Group, Inc., No. 13-cv-1236 (CKK), 2014-1 Trade 
Cas. (CCH) ] 78, 748, 2014 U.S. Dist. LEXIS 57801, at *7 (D.D.C. Apr. 
25, 2014) (noting the court has broad discretion of the adequacy of the 
relief at issue); United States v. InBev N.V./S.A., No. 08[dash]1965 
(JR), 2009[dash]2 Trade Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 
84787, at *3, (D.D.C. Aug. 11, 2009) (noting that the court's review of 
a consent judgment is limited and only inquires ``into whether the 
government's determination that the proposed remedies will cure the 
antitrust violations alleged in the complaint was reasonable, and 
whether the mechanism to enforce the final judgment are clear and 
manageable.'').\3\
---------------------------------------------------------------------------

    \3\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
Sec.  16(e) (2004) with 15 U.S.C. Sec.  16(e)(1) (2006); see also 
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 
amendments ``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA a court considers, among other things, 
the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458[dash]62. With respect to the adequacy of the 
relief secured by the decree, 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) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460[dash]62; United States v. Alcoa, Inc., 
152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 
84787, at *3. 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).\4\ 
In determining whether a proposed settlement is in the public interest, 
a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 2014 U.S. Dist. 
LEXIS 57801, at *16 (noting that a court should not reject the proposed 
remedies because it believes others are preferable); Microsoft, 56 F.3d 
at 1461 (noting the need for courts to be ``deferential to the 
government's predictions as to the effect of the proposed remedies''); 
United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 
(D.D.C. 2003) (noting that the court should grant due respect to the 
United States' prediction as to the effect of proposed remedies, its 
perception of the market structure, and its views of the nature of the 
case).
---------------------------------------------------------------------------

    \4\ 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''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (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''').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[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. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also U.S. 
Airways, 2014 U.S. Dist.

[[Page 52326]]

LEXIS 57801, at *8 (noting that room must be made for the government to 
grant concessions in the negotiation process for settlements (citing 
Microsoft, 56 F.3d at 1461)); United States v. Alcan Aluminum Ltd., 605 
F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even 
though the court would have imposed a greater remedy). To meet this 
standard, the United States ``need only provide a factual basis for 
concluding that the settlements are reasonably adequate remedies for 
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    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; see also U.S. Airways, 
2014 U.S. Dist. LEXIS 57801, at *9 (noting that the court must simply 
determine whether there is a factual foundation for the government's 
decisions such that its conclusions regarding the proposed settlements 
are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the 
`public interest' is not to be measured by comparing the violations 
alleged in the complaint against those the court believes could have, 
or even should have, been alleged''). 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. Microsoft, 56 
F.3d at 1459[dash]60. As this Court recently confirmed in SBC 
Communications, courts ``cannot look beyond the complaint in making the 
public interest determination unless the complaint is drafted so 
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. 
Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction that ``[n]othing 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); see also U.S. Airways, 2014 U.S. 
Dist. LEXIS 57801, at *9 (indicating that a court is not required to 
hold an evidentiary hearing or to permit intervenors as part of its 
review under the Tunney Act). The language wrote into the statute what 
Congress intended when it enacted the Tunney Act in 1974, as Senator 
Tunney explained: ``[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). Rather, the procedure for the public interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp. 2d at 11.\5\ A court can make its public 
interest determination based on the competitive impact statement and 
response to public comments alone. U.S. Airways, 2014 U.S. Dist. LEXIS 
57801, at *9.
---------------------------------------------------------------------------

    \5\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977[dash]1 Trade Cas. 
(CCH) ] 61,508, at 71,980 (W.D. Mo. 1977) (``Absent 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.''); S. Rep. No. 93[dash]298, 93d Cong., 1st Sess., at 
6 (1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').
---------------------------------------------------------------------------

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 1, 2017

    Respectfully Submitted,

/s/
Bennett J. Matelson*---------------------------------------------------
Mark A. Merva
Trial Attorneys

United States Department of Justice, Antitrust Division Media, 
Entertainment and Professional Services Section, 450 Fifth Street 
NW, Suite 4000, Washington, DC 20530, Tel: (202) 616-5871, Fax: 
(202) 514-7308, Email: bennett.matelson@usdoj.gov

* Attorney of Record

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Entercom Communications 
Corp. and CBS Corporation, Defendants.

Case No: 1:17-cv-02268
Judge: Boasberg

PROPOSED FINAL JUDGMENT

    WHEREAS, Plaintiff, United States of America, filed its Complaint 
on November 1, 2017, the United States and defendants Entercom 
Communications Corp. and CBS Corporation, 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 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 the defendants to 
assure that competition is not substantially lessened;
    AND WHEREAS, the United States 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 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, as amended (15 U.S.C. Sec.  18).

II. Definitions

    As used in this Final Judgment:
    A. ``Entercom'' means defendant Entercom Communications Corp., a 
Pennsylvania corporation headquartered in Bala Cynwyd, Pennsylvania, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    B. ``CBS'' means defendant CBS Corporation, a Delaware corporation 
headquartered in New York City, New York, its successors and assigns, 
and its

[[Page 52327]]

subsidiaries, including CBS Radio, Inc., divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``Acquirers'' means Beasley, iHeartMedia, or another entity to 
which Entercom divests any Divestiture Assets.
    D. ``Beasley'' means Beasley Broadcast Group, Inc., a Delaware 
Corporation, headquartered in Naples, Florida, its successor and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    E. ``Bonneville'' means Bonneville International Corporation, 
headquartered in Salt Lake City, Utah, its successor and assigns, and 
its subsidiaries, divisions, groups, affiliates, partnerships, and 
joint ventures, and their directors, officers, managers, agents, and 
employees.
    F. ``iHeartMedia'' means iHeartMedia, Inc., a Delaware Corporation, 
headquartered in San Antonio, Texas, its successor and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen 
Company and used by the Investing in Radio BIA Market Report 2016 (1st 
edition). DMAs are ranked according to the number of households therein 
and are used by broadcasters, advertisers, and advertising agencies to 
aid in evaluating radio audience size and composition.
    H. ``LMA'' means a local marketing agreement.
    I. ``Divestiture Assets'' means
    1. The following broadcast radio stations owned by CBS:
    a. WBZ AM, located in the Boston, Massachusetts DMA (``WBZ AM'');
    b. WBZ FM, located in the Boston, Massachusetts DMA (``WBZ FM'');
    c. WZLX FM, located in the Boston, Massachusetts DMA (``WZLX FM'');
    d. KMVQ FM, located in the San Francisco, California DMA (``KMVQ 
FM'');
    e. KNCI FM, located in the Sacramento, California DMA (``KNCI 
FM'');
    f. KYMX FM, located in the Sacramento, California DMA (``KYMX 
FM'');
    g. KZZO FM, located in the Sacramento, California DMA (``KZZO 
FM''); and
    h. KHTK AM, located in the Sacramento, California DMA (``KHTK 
AM'').
    2. The following broadcast radio stations owned by Entercom:
    a. WRKO AM, located in the Boston, Massachusetts DMA (``WRKO AM'');
    b. WKAF FM, located in the Boston, Massachusetts DMA (``WKAF FM'');
    c. KOIT FM, located in the San Francisco, California DMA (``KOIT 
FM'')
    d. KUFX FM, located in the San Francisco, California DMA (``KUFX 
FM''); and
    e. KBLX FM, located in the San Francisco, California DMA (``KBLX 
FM'').
    3. All of the assets, tangible or intangible, necessary for the 
operations of the Divestiture Radio Stations and LMA Radio Stations as 
viable, ongoing commercial broadcast radio stations, except as 
otherwise agreed to in writing by the United States Department of 
Justice, including, but not limited to, all real property (owned or 
leased), all broadcast equipment, office equipment, office furniture, 
fixtures, materials, supplies, and other tangible property; all 
licenses, permits, authorizations, and applications therefore issued by 
the Federal Communications Commission (``FCC'') and other government 
agencies related to the stations; all contracts (including programming 
contracts and rights), agreements, network agreements, leases, and 
commitments and understandings of defendants; all trademarks, service 
marks, trade names, copyrights, patents, slogans, programming 
materials, and promotional materials relating to the stations (subject 
to the CBS Brands License Agreements contained in the Agreement and 
Plan of Merger, dated February 2, 2017, between CBS, CBS Radio, Inc., 
and Entercom); all customer lists, contracts, accounts, credit records, 
and all logs and other records maintained by defendants in connection 
with the stations.
    J. ``Divestiture Radio Stations'' means WBZ AM, WBZ FM, WRKO AM, 
WKAF FM and WZLX FM.
    K. ``LMA Radio Stations'' means KOIT FM, KMVQ FM, KUFX FM, KBLX FM, 
KNCI FM, KYMX FM, KZZO FM and KHTK AM.
    L. ``Relevant Employee'' means the personnel involved in the 
operations of the Divestiture Assets.

III. Applicability

    A. This Final Judgment applies to Entercom and CBS 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. If, prior to complying with Section V and Section VI of this 
Final Judgment, defendants sell or otherwise dispose of all or 
substantially all of their assets or of lesser business units that 
include the Divestiture Assets, defendants shall require the purchaser 
to be bound by the provisions of this Final Judgment. Entercom need not 
obtain such an agreement from the acquirers of the assets divested 
pursuant to this Final Judgment.

IV. LMA

    Entercom is ordered and directed, after the Court's approval of the 
Hold Separate Stipulation and Order in this matter, to enter into an 
LMA(s) with respect to the LMA Radio Stations with Bonneville, the 
terms of which are subject to the approval of the United States in its 
sole discretion. Pursuant to the terms of the LMA(s), Entercom will 
cede to Bonneville the sole right and ability to program and sell 
advertising on the LMA Radio Stations. The LMA(s) shall last no longer 
than one year or, with respect to each LMA Radio Station, upon the 
consummation of a final agreement to divest that station to an 
Acquirer. Without limiting defendants' obligations under Section IX, 
Bonneville will program each of those radio stations as an independent, 
ongoing, economically viable, competitive business, with programming 
and advertising sales held entirely separate, distinct, and apart from 
those of defendants' other operations. Entercom and Bonneville may not 
amend the LMA(s) without the prior approval of the United States, in 
its sole discretion.

V. Divestitures

    A. Entercom is ordered and directed, within ninety (90) calendar 
days after the signing of the Hold Separate Stipulation and Order in 
this matter or five (5) calendar days after notice of the entry of this 
Final Judgment by the Court, whichever is later, to divest the 
Divestiture Radio Stations in a manner consistent with this Final 
Judgment to an Acquirer or Acquirers 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 
ninety (90) calendar days in total, and shall notify the Court in such 
circumstances.
    B. Entercom is ordered and directed, within one hundred and eighty 
(180) calendar days after the signing of the Hold Separate Stipulation 
and Order in this matter, to divest the LMA Radio Stations in a manner 
consistent with this Final Judgment to an Acquirer or Acquirers 
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 one hundred and eighty (180) calendar 
days in total, and

[[Page 52328]]

shall notify the Court in such circumstances.
    C. With respect to divestiture of the Divestiture Assets by 
Entercom or the trustee appointed pursuant to Section VI of this Final 
Judgment, 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 Divestiture Assets, but no 
order or other dispositive action by the FCC on such applications has 
been issued before the end of the period permitted for divestiture, the 
period permitted for divestiture shall be extended no later than ten 
(10) business days after the FCC order consenting to the assignment of 
the Divestiture Assets to the Acquirers has become final.
    D. Entercom shall use its best efforts to accomplish the 
divestitures ordered by this Final Judgment as expeditiously as 
possible, including using their best efforts to obtain all necessary 
FCC 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 Final Judgment.
    E. In the event that Entercom is attempting to divest any of the 
Divestiture Assets to an Acquirer other than Beasley (WBZ FM) or 
iHeartMedia (WBZ AM, WRKO AM, WKAF FM, and WZLX FM):
    (1) Entercom promptly shall make known, by usual and customary 
means, the availability of the Divestiture Assets;
    (2) Entercom 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;
    (3) Except with written permission from the United States, Entercom 
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 privilege or work-product doctrine; and
    (4) Entercom shall make available such information to the United 
States at the same time that such information is made available to any 
other person.
    F. Defendants shall provide the Acquirer(s) and the United States 
information relating to the personnel necessary to the operation or 
management 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 or management of the 
Divestiture Assets.
    G. From the date of the filing of the Complaint in this matter, 
defendants may enter into an agreement with an Acquirer or Bonneville 
pursuant to which defendants may not solicit to hire, or hire, certain 
Relevant Employees. Any such agreement is subject to the approval of 
the United States, in its sole discretion.
    H. Entercom shall permit prospective acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
of the physical facilities of each of the Divestiture Radio Stations; 
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.
    I. Entercom shall warrant to the Acquirer(s) that each Divestiture 
Radio Station or LMA Radio Station will be operational on the date of 
sale.
    J. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of each of the Divestiture 
Radio Stations or LMA Radio Stations.
    K. Entercom shall warrant to the Acquirers that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each Divestiture Radio Station or LMA 
Radio Station, and that, following the sale of each 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 each Divestiture Radio Station or LMA Radio Station.
    L. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section V, or by Divestiture Trustee appointed 
pursuant to Section VI 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 each 
Divestiture Radio Station or LMA Radio Station can and will be used by 
the Acquirer(s) as part of a viable, ongoing commercial radio 
broadcasting business. 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 the United States that the 
Divestiture Assets will remain viable, and the divestiture of such 
assets will achieve the purposes of this Final Judgment and remedy the 
competitive harm alleged in the Complaint. The divestitures, whether 
pursuant to Section V or Section VI of this Final Judgment:
    (1) shall be made to Acquirers that, in the United States' sole 
judgment, has the intent and capability (including the necessary 
managerial, operational, technical, and financial capability) of 
competing effectively in the commercial radio broadcasting business; 
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 and defendants gives defendants the ability unreasonably to 
raise any Acquirer's costs, to lower any Acquirer's efficiency, or 
otherwise to interfere in the ability of any Acquirer to compete 
effectively.

VI. Appointment of Divestiture Trustee

    A. If defendants have not divested each of the Divestiture Radio 
Stations within the time period specified in Section V(A) or each of 
the LMA Radio Stations within the time period specified in Section 
V(B), defendants shall notify the United States of that fact in 
writing. Upon application of the United States, the Court shall appoint 
a Divestiture 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 Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture Trustee shall have the power 
and authority to accomplish the divestiture to an Acquirer(s) 
acceptable to the United States at such price and on such terms as are 
then obtainable upon reasonable effort by the Divestiture Trustee, 
subject to the provisions of Sections V, VI, and VII of this Final 
Judgment, and shall have such other powers as this Court deems 
appropriate. Subject to Section VI(D) of this Final Judgment, the 
Divestiture Trustee may hire at the cost and expense of Entercom any 
investment bankers, attorneys, or other agents, who shall be solely 
accountable to the Divestiture Trustee, reasonably necessary in the 
Divestiture Trustee's judgment to assist in the divestiture. Any such 
investment bankers, attorneys, or other agents shall serve on such 
terms and conditions as the United States approves, including 
confidentiality requirements and conflict of interest certifications.
    C. Defendants shall not object to a sale by the Divestiture Trustee 
on any ground other than the Divestiture Trustee's malfeasance. Any 
such

[[Page 52329]]

objections by defendants must be conveyed in writing to the United 
States and the Divestiture Trustee within ten (10) calendar days after 
the Divestiture Trustee has provided the notice required under Section 
VII.
    D. The Divestiture Trustee shall serve at the cost and expense of 
Entercom pursuant to a written agreement, on such terms and conditions 
as the United States approves, including confidentiality requirements 
and conflict of interest certifications. The Divestiture Trustee shall 
account for all monies derived from the sale of the assets sold by the 
Divestiture Trustee and all costs and expenses so incurred. After 
approval by the Court of the Divestiture Trustee's accounting, 
including fees for its services yet unpaid and those of any 
professionals and agents retained by the Divestiture Trustee, all 
remaining money shall be paid to Entercom and the trust shall then be 
terminated. The compensation of the Divestiture Trustee and any 
professionals and agents retained by the Divestiture Trustee shall be 
reasonable in light of the value of the Divestiture Assets and based on 
a fee arrangement providing the Divestiture 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. If the 
Divestiture Trustee and Entercom are unable to reach agreement on the 
Divestiture Trustee's or any agents' or consultants' compensation or 
other terms and conditions of engagement within 14 calendar days of 
appointment of the Divestiture Trustee, the United States may, in its 
sole discretion, take appropriate action, including making a 
recommendation to the Court. The Divestiture Trustee shall, within 
three (3) business days of hiring any other professionals or agents, 
provide written notice of such hiring and the rate of compensation to 
Entercom and the United States.
    E. Defendants shall use their best efforts to assist the 
Divestiture Trustee in accomplishing the required divestitures. The 
Divestiture Trustee and any consultants, accountants, attorneys, and 
other agents retained by the Divestiture Trustee shall have full and 
complete access to the personnel, books, records, and facilities of the 
business to be divested, and defendants shall develop financial and 
other information relevant to such business as the Divestiture Trustee 
may reasonably request, subject to reasonable protection for trade 
secret or other confidential research, development, or commercial 
information or any applicable privileges. Defendants shall take no 
action to interfere with or to impede the Divestiture Trustee's 
accomplishment of the divestitures.
    F. After its appointment, the Divestiture Trustee shall file 
monthly reports with the United States and, as appropriate, the Court 
setting forth the Divestiture Trustee's efforts to accomplish the 
divestitures ordered under this Final Judgment. To the extent such 
reports contain information that the Divestiture 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 and of the Divestiture Radio Stations or LMA Radio 
Stations, and shall describe in detail each contact with any such 
person. The Divestiture Trustee shall maintain full records of all 
efforts made to divest the Divestiture Assets.
    G. If the Divestiture Trustee has not accomplished the divestitures 
ordered under this Final Judgment within six months after its 
appointment, the Divestiture Trustee shall promptly file with the Court 
reports setting forth (1) the Divestiture Trustee's efforts to 
accomplish the required divestitures, (2) the reasons, in the 
Divestiture Trustee's judgment, why the required divestitures have not 
been accomplished, and (3) the Divestiture Trustee's recommendations. 
To the extent such reports contain information that the Divestiture 
Trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. The Divestiture Trustee shall at the same 
time furnish such reports to the United States, which 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 
Divestiture Trustee's appointment by a period requested by the United 
States.
    H. If the United States determines that the Divestiture Trustee has 
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute 
Divestiture Trustee.

VII. Notice of Proposed Divestitures

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, Entercom or the Divestiture Trustee, whichever 
is then responsible for effecting the divestiture required herein, 
shall notify the United States of any proposed divestiture required by 
Section V or Section VI of this Final Judgment. If the Divestiture 
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(s), any other third party, or the Divestiture 
Trustee, if applicable, additional information concerning the proposed 
divestiture(s), the proposed Acquirer(s), and any other potential 
Acquirer. Defendants and the Divestiture 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(s), any third party, and the Divestiture Trustee, 
whichever is later, the United States shall provide written notice to 
defendants and the Divestiture Trustee, if there is one, stating 
whether or not it objects to the proposed 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 VI(C) of this Final Judgment. Absent written 
notice that the United States does not object to the proposed 
Acquirer(s) or upon objection by the United States, a divestiture 
proposed under Section V or Section VI shall not be consummated. Upon 
objection by defendants under Section VI(C), a divestiture proposed 
under Section VI shall not be consummated unless approved by the Court.

VIII. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to Section V or Section VI of this Final Judgment.

IX. Hold Separate

    Until the divestitures required by this Final Judgment have been 
accomplished, defendants shall take all

[[Page 52330]]

steps necessary to comply with the Hold Separate Stipulation and Order 
entered by this Court. Defendants shall take no action that would 
jeopardize the divestitures ordered by this Court.

X. 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 V or Section VI, 
defendants shall deliver to the United States an affidavit as to the 
fact and manner of their compliance with Section V or Section VI of 
this Final Judgment. Each such affidavit shall include the name, 
address, and telephone number of each person who, during the preceding 
thirty (30) calendar 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 any of 
the Divestiture Radio Stations, 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 and complete the sale of each of the Divestiture 
Radio Stations, including efforts to secure FCC or other regulatory 
approvals, 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 any limitations on information, shall be made 
within fourteen (14) calendar days of 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 IX of this Final Judgment. Each such 
affidavit shall also include a description of the efforts defendants 
have taken to complete the sale of each of the Divestiture Radio 
Stations, including efforts to secure FCC or other regulatory 
approvals. 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.

XI. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of any related orders such as the Hold Separate 
Stipulation and Order, or of determining whether the Final Judgment 
should be modified or vacated, and subject to any legally recognized 
privilege, from time to time authorized representatives of the United 
States Department of Justice, including consultants and other persons 
retained by the United States, shall, upon written request of an 
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 the option of the United States, to require defendants to provide 
hard copy or electronic copies of, all books, ledgers, accounts, 
records, data 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 an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports or responses to written 
interrogatories, 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)(1)(G) of the 
Federal Rules of Civil Procedure, and defendants mark each pertinent 
page of such material, ``Subject to claim of protection under Rule 
26(c)(1)(g) 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 than a grand 
jury proceeding).

XII. No Reacquisition and Other Prohibited Activities

    After the Divestiture Assets have been divested to Acquirers 
acceptable to the United States in its sole discretion, and during the 
term of the Final Judgment: defendants may not (1) reacquire any part 
of the Divestiture Assets, (2) acquire any option to reacquire any part 
of the Divestiture Assets or to assign the Divestiture Assets to any 
other person, (3) enter into any time brokerage agreement, local 
marketing agreement, joint sales agreement, or other cooperative 
selling arrangement with respect to the Divestiture Assets, or (4) 
provide financing or guarantees of financing with respect to the 
Divestiture Assets. Entercom may not enter into any shared services 
agreement or conduct other business negotiations jointly with the 
Acquirer(s) with respect to the Divestiture Assets.
    The shared services prohibition does not preclude defendants from 
continuing or entering into any non-sales-related shared services 
agreement that is approved in advance by the United States in its sole 
discretion.
    If defendants reach an agreement to divest the Divestiture Assets 
to the Acquirers, defendants may also enter into an agreement, approved 
in advance by the United States in its sole discretion, under which a 
defendant cedes to the Acquirer the sole right and ability to program 
one or more of the Divestiture Assets after the Court's approval of the 
Hold Separate Stipulation and Order in this matter, provided that any 
such time brokerage agreement must expire upon the termination of a 
final agreement to divest the Divestiture Assets to the Acquirer or 
upon the consummation of a final agreement to divest the Divestiture 
Assets to the Acquirer.

XIII. 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.

[[Page 52331]]

XIV. Enforcement of Final Judgment

    The United States retains and reserves all rights available to it 
under applicable law to enforce the provisions of this Final Judgment, 
including its right to seek an order of contempt from this Court. Any 
civil contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of this 
order shall be evaluated under a preponderance of the evidence 
standard.

XV. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry, except that after 
five years from the date of its entry, this Final Judgment may be 
terminated upon notice by the United States to the Court and the 
Parties that the divestitures have been completed and that the 
continuation of the decree no longer is necessary or in the public 
interest.

XVI. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C Sec.  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 responses 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. Sec.  16.

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United States District Judge

[FR Doc. 2017-24548 Filed 11-9-17; 8:45 am]
BILLING CODE 4410-11-P