81 FR 57617 - United States of America v. Charter Communications, Inc., et al.; Public Comment and Response on Proposed Final Judgment
DEPARTMENT OF JUSTICE
Antitrust Division Federal Register Volume 81, Issue 163 (August 23, 2016)
Antitrust Division
Federal Register Volume 81, Issue 163 (August 23, 2016)
| Page Range | 57617-57620 | |
| FR Document | 2016-20066 |
[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)] [Notices] [Pages 57617-57620] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-20066] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division United States of America v. Charter Communications, Inc., et al.; Public Comment and Response on Proposed Final Judgment Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States hereby publishes below the comment received on the proposed Final Judgment in United States of America v. Charter Communications, Inc., et al., Civil Action No. 1:16-cv-00759, together with the Response of the United States to Public Comment. Copies of the comment and the United States' Response are available for inspection on the Antitrust Division's Web site 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. Patricia A. Brink, Director of Civil Enforcement. United States District Court for the District of Columbia United States of America, Plaintiff, v. Charter Communications, Inc., Time Warner Cable Inc, Advance/Newhouse Partnership, and Bright House Networks, LLC, Defendants. Civil Action No. 1:16-cv-00759 (RCL) RESPONSE OF PLANTIFF UNITED STATES TO PUBLIC COMMENT ON THE PROPOSED FINAL JUDGMENT Pursuant to the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the United States hereby files the single public comment received concerning the proposed Final Judgment in this case and the United States's response to the comment. After careful consideration of the submitted comment, the United States continues to believe that the proposed Final Judgment provides an effective and appropriate remedy for the antitrust violations alleged in the Complaint. The United States will move the Court for entry of the proposed Final Judgment after the public comment and this Response have been published in the Federal Register pursuant to 15 U.S.C. 16(d). I. PROCEDURAL HISTORY On May 23, 2015, Charter Communications, Inc. (``Charter'') and Time Warner Cable, Inc. (``TWC''), two of the largest cable companies in the United States, agreed to merge in a deal valued at over $78 billion. In addition, Charter and Advance/Newhouse Partnership, which owns Bright House Networks, LLC (``BHN''), announced that Charter would acquire BHN for $10.4 billion, conditional on the sale of TWC to Charter. On April 25, 2015, the United States filed a civil antitrust Complaint seeking to enjoin Charter from acquiring TWC and BHN. The United States alleged in the Complaint that the proposed acquisition likely would substantially lessen `competition in numerous local markets for the timely distribution of professional, full-length video programming to residential customers (``video programming distribution'') throughout the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. Simultaneously with the filing of the Complaint, the United States filed a proposed Final Judgment that would settle the case. On May 10, 2016, the United States filed a Competitive Impact Statement (``CIS'') that explains how the proposed Final Judgment is designed to remedy the likely anticompetitive effects of the proposed acquisition. As required by the Tunney Act, the United States published the proposed Final Judgment and CIS in the Federal Register on May 17, 2016. See 81 FR 30550. In addition, the United States ensured that a summary of the terms of the proposed Final Judgment and CIS, together with directions for the submission of written comments, were published in The Washington Post for seven days from May 13 through 19, 2016. The 60-day period for public comments ended on July 18, 2016. The United States received one comment, which is described below and attached as Exhibit 1. II. THE INVESTIGATION AND THE PROPOSED SETTLEMENT The proposed Final Judgment is the culmination of more than ten months of investigation by the Antitrust Division of the United States Department of Justice (``Department''). The Department opened an investigation soon after the transactions were announced, and conducted a comprehensive review of the potential implications of the transactions. The Department interviewed dozens of companies and individuals involved in the industry, obtained deposition testimony, required Defendants to provide the Department with extensive data and responses to numerous interrogatories, and collected millions of business documents from the Defendants and relevant third parties. The Department also consulted extensively with the Federal Communications Commission, which was conducting a separate statutory review of the acquisitions, to ensure that the agencies conducted their reviews in a coordinated and complementary fashion and created remedies that were both comprehensive and consistent. Although Charter, TWC, and BHN do not compete to offer residential services in the same local geographic areas, the Department's investigation found that the proposed acquisitions were likely to substantially lessen competition because they would increase Charter's incentive and ability to use its bargaining leverage to make it more difficult for online video distributors to compete effectively. In particular, the Department alleged in its Complaint that the merger would give Charter greater incentive and ability to use restrictive clauses in its contracts with video programmers to prevent online video distributors from obtaining important video programming content. The proposed Final Judgment is designed to address the anticompetitive [[Page 57618]] effects identified in the Complaint by prohibiting Charter from entering into or enforcing certain restrictive contract provisions that may be likely to substantially lessen competition. In addition, Charter is prohibited from retaliating against video programmers for licensing content to online providers that compete with Charter. Charter is also required to provide certain regular reports to the Department, so that the Department can monitor whether a separate remedy imposed by the Federal Communications Commission is successfully preventing Charter from using its bargaining leverage over internet interconnection to harm online video providers. III. STANDARD OF JUDICIAL REVIEW The Tunney Act requires that proposed consent judgments in antitrust cases brought by the United States be subject to a 60-day public 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 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). 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 also United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1, 10-11 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v. InBev N.V./S.A., No. 08-cv-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (discussing nature of review of consent judgment under the Tunney Act; inquiry is limited to ``whether the government's determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanisms to enforce the final judgment are clear and manageable''). Under the APPA, a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the Complaint, whether the decree is sufficiently clear, whether the 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) (citing United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)). Instead, 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 in ``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). In determining whether a proposed settlement is in the public interest, ``the court `must accord deference to the government's predictions about the efficacy of its remedies.' '' United States v. U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (quoting SBC Commc'ns, 489 F. Supp. at 17). See also Microsoft, 56 F.3d at 1461 (noting that the government is entitled to deference as to its ``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 the proposed remedies, its perception of the market structure, and its views of the nature of the case''); United States v. Morgan Stanley, 881 F. Supp. 2d 563, 567-68 (S.D.N.Y. 2012) (explaining that the government is entitled to deference in choice of remedies). Courts ``may not require that the remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17. Rather, the ultimate question is 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.' '' Microsoft, 56 F.3d at 1461. Accordingly, 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; see also United States v. Apple, Inc. 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012). And, 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 the public interest.'' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations and internal quotations omitted); see also 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). In its 2004 amendments to the Tunney Act,\1\ Congress made clear its intent to preserve the practical benefits of using 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). 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 the Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11; see also United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (``[T]he Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to public comments alone.''); US Airways, 38 F. Supp. 3d at 76 (same). --------------------------------------------------------------------------- \1\ The 2004 amendments substituted ``shall'' for ``may'' in directing relevant factors for courts 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). --------------------------------------------------------------------------- [[Page 57619]] IV. Summary of Public Comment and Response of the United States During the 60-day comment period, the United States received one comment from Amy R. Bloomfield, a Charter customer in North Carolina. Ms. Bloomfield generally describes her poor experience as a Charter customer. Ms. Bloomfield opposes the merger because ``Time Warner [Cable] is a decent company; Charter is not.'' The United States appreciates receiving Ms. Bloomfield's comment. Over the course of its ten-month investigation, the United States carefully considered the competitive effects of Charter's proposed acquisitions of TWC and BHN, including any possible effects on customer service. As a result of its investigation, the United States concluded that these acquisitions were likely to reduce competition only insofar as they increased the incentive and ability of Charter to foreclose competition from nascent online video providers. Therefore, the Department's Complaint only addressed that issue. It is well-settled that comments, such as Ms. Bloomfield's comment, that are unrelated to the concerns identified in the complaint are beyond the scope of this Court's Tunney Act review. See, e.g., SBC Commc'ns, 489 F. Supp. 2d at 14 (holding that ``a district court is not permitted to `reach beyond the complaint to evaluate claims that the government did not make and to inquire as to why they were not made' '') (quoting Microsoft, 56 F.3d at 1459) (emphasis in original); see also US Airways, 38 F. Supp. 3d at 76. Accordingly, Ms. Bloomfield's comment does not provide a basis for rejecting the proposed Final Judgment. V. Conclusion After reviewing the public comment, the United States continues to believe that the proposed Final Judgment, as drafted, provides an effective and appropriate remedy for the antitrust violations alleged in the Complaint, and is therefore in the public interest. The United States will move this Court to enter the proposed Final Judgment after the comment and this response are published in the Federal Register. Dated: August 16, 2016. Respectfully submitted, /s/-------------------------------------------------------------------- Robert Lepore, United States Department of Justice, Antitrust Division, 450 Fifth Street NW., Suite 7000, Washington, DC 20530, Tel.: (202) 532-4928, Email: [email protected]. BILLING CODE P [[Page 57620]] [GRAPHIC] [TIFF OMITTED] TN23AU16.002 [FR Doc. 2016-20066 Filed 8-22-16; 8:45 am] BILLING CODE C
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applying for a Federal firearms license payment of the copying fee set by proposed Final Judgment is designed to
to collect curios and relics to facilitate Department of Justice regulations. remedy the likely anticompetitive
a personal collection in interstate and effects of the proposed acquisition. As
Patricia A. Brink,
foreign commerce. The information required by the Tunney Act, the United
Director of Civil Enforcement.
requested on the form establishes States published the proposed Final
eligibility for all license types. United States District Court for the Judgment and CIS in the Federal
District of Columbia Register on May 17, 2016. See 81 FR
5. An estimate of the total number of 30550. In addition, the United States
respondents and the amount of time United States of America, Plaintiff, v.
Charter Communications, Inc., Time Warner ensured that a summary of the terms of
estimated for an average respondent to the proposed Final Judgment and CIS,
Cable Inc, Advance/Newhouse Partnership,
respond: An estimated 15,000 and Bright House Networks, LLC, Defendants. together with directions for the
respondents will take 60 minutes to Civil Action No. 1:16–cv–00759 (RCL) submission of written comments, were
complete the form. published in The Washington Post for
6. An estimate of the total public RESPONSE OF PLANTIFF UNITED seven days from May 13 through 19,
STATES TO PUBLIC COMMENT ON 2016. The 60-day period for public
burden (in hours) associated with the
THE PROPOSED FINAL JUDGMENT comments ended on July 18, 2016. The
collection: The estimated annual public
burden associated with this collection is Pursuant to the requirements of the United States received one comment,
15,000 hours. Antitrust Procedures and Penalties Act, which is described below and attached
15 U.S.C. 16(b)–(h) (‘‘APPA’’ or as Exhibit 1.
If additional information is required ‘‘Tunney Act’’), the United States
contact: Jerri Murray, Department II. THE INVESTIGATION AND THE
hereby files the single public comment PROPOSED SETTLEMENT
Clearance Officer, United States received concerning the proposed Final
Department of Justice, Justice Judgment in this case and the United The proposed Final Judgment is the
Management Division, Policy and States’s response to the comment. After culmination of more than ten months of
Planning Staff, Two Constitution careful consideration of the submitted investigation by the Antitrust Division
Square, 145 N Street NE., Room 3E– comment, the United States continues to of the United States Department of
405B, Washington, DC 20530. believe that the proposed Final Justice (‘‘Department’’). The Department
Judgment provides an effective and opened an investigation soon after the
Dated: August 17, 2016. transactions were announced, and
appropriate remedy for the antitrust
Jerri Murray, conducted a comprehensive review of
violations alleged in the Complaint. The
Department Clearance Officer for PRA, U.S. United States will move the Court for the potential implications of the
Department of Justice. entry of the proposed Final Judgment transactions. The Department
[FR Doc. 2016–20051 Filed 8–22–16; 8:45 am] after the public comment and this interviewed dozens of companies and
BILLING CODE 4410–40–P Response have been published in the individuals involved in the industry,
Federal Register pursuant to 15 U.S.C. obtained deposition testimony, required
16(d). Defendants to provide the Department
DEPARTMENT OF JUSTICE with extensive data and responses to
I. PROCEDURAL HISTORY numerous interrogatories, and collected
Antitrust Division On May 23, 2015, Charter millions of business documents from
Communications, Inc. (‘‘Charter’’) and the Defendants and relevant third
United States of America v. Charter Time Warner Cable, Inc. (‘‘TWC’’), two parties. The Department also consulted
Communications, Inc., et al.; Public of the largest cable companies in the extensively with the Federal
Comment and Response on Proposed United States, agreed to merge in a deal Communications Commission, which
Final Judgment valued at over $78 billion. In addition, was conducting a separate statutory
Charter and Advance/Newhouse review of the acquisitions, to ensure that
Pursuant to the Antitrust Procedures Partnership, which owns Bright House the agencies conducted their reviews in
and Penalties Act, 15 U.S.C. 16(b)–(h), Networks, LLC (‘‘BHN’’), announced a coordinated and complementary
the United States hereby publishes that Charter would acquire BHN for fashion and created remedies that were
below the comment received on the $10.4 billion, conditional on the sale of both comprehensive and consistent.
proposed Final Judgment in United TWC to Charter. On April 25, 2015, the Although Charter, TWC, and BHN do
States of America v. Charter United States filed a civil antitrust not compete to offer residential services
Communications, Inc., et al., Civil Complaint seeking to enjoin Charter in the same local geographic areas, the
from acquiring TWC and BHN. The Department’s investigation found that
Action No. 1:16–cv–00759, together
United States alleged in the Complaint the proposed acquisitions were likely to
with the Response of the United States
that the proposed acquisition likely substantially lessen competition
to Public Comment. because they would increase Charter’s
would substantially lessen ‘competition
Copies of the comment and the in numerous local markets for the incentive and ability to use its
United States’ Response are available for timely distribution of professional, full- bargaining leverage to make it more
inspection on the Antitrust Division’s length video programming to residential difficult for online video distributors to
Web site at http://www.justice.gov/atr, customers (‘‘video programming compete effectively. In particular, the
and at the Office of the Clerk of the distribution’’) throughout the United Department alleged in its Complaint
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United States District Court for the States in violation of Section 7 of the that the merger would give Charter
District of Columbia. Copies of these Clayton Act, 15 U.S.C. 18. greater incentive and ability to use
materials may be obtained from the Simultaneously with the filing of the restrictive clauses in its contracts with
Antitrust Division upon request and Complaint, the United States filed a video programmers to prevent online
proposed Final Judgment that would video distributors from obtaining
settle the case. On May 10, 2016, the important video programming content.
United States filed a Competitive Impact The proposed Final Judgment is
Statement (‘‘CIS’’) that explains how the designed to address the anticompetitive
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![57618 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Notices
effects identified in the Complaint by consent judgment under the Tunney Courts ‘‘may not require that the
prohibiting Charter from entering into or Act; inquiry is limited to ‘‘whether the remedies perfectly match the alleged
enforcing certain restrictive contract government’s determination that the violations.’’ SBC Commc’ns, 489 F.
provisions that may be likely to proposed remedies will cure the Supp. 2d at 17. Rather, the ultimate
substantially lessen competition. In antitrust violations alleged in the question is whether ‘‘the remedies
addition, Charter is prohibited from complaint was reasonable, and whether [obtained in the decree are] so
retaliating against video programmers the mechanisms to enforce the final inconsonant with the allegations
for licensing content to online providers judgment are clear and manageable’’). charged as to fall outside of the ‘reaches
that compete with Charter. Charter is Under the APPA, a court considers, of the public interest.’ ’’ Microsoft, 56
also required to provide certain regular among other things, the relationship F.3d at 1461. Accordingly, the United
reports to the Department, so that the between the remedy secured and the States ‘‘need only provide a factual basis
Department can monitor whether a specific allegations set forth in the
separate remedy imposed by the Federal for concluding that the settlements are
Complaint, whether the decree is
Communications Commission is reasonably adequate remedies for the
sufficiently clear, whether the
successfully preventing Charter from alleged harms.’’ SBC Commc’ns, 489 F.
enforcement mechanisms are sufficient,
using its bargaining leverage over and whether the decree may positively Supp. 2d at 17; see also United States
internet interconnection to harm online harm third parties. See Microsoft, 56 v. Apple, Inc. 889 F. Supp. 2d 623, 631
video providers. F.3d at 1458–62. With respect to the (S.D.N.Y. 2012). And, a ‘‘proposed
adequacy of the relief secured by the decree must be approved even if it falls
III. STANDARD OF JUDICIAL REVIEW short of the remedy the court would
decree, a court may not ‘‘engage in an
The Tunney Act requires that unrestricted evaluation of what relief impose on its own, as long as it falls
proposed consent judgments in antitrust would best serve the public.’’ United within the range of acceptability or is
cases brought by the United States be States v. BNS, Inc., 858 F.2d 456, 462 within the reaches of the public
subject to a 60-day public comment (9th Cir. 1988) (citing United States v. interest.’’ United States v. Am. Tel. &
period, after which the court shall Bechtel Corp., 648 F.2d 660, 666 (9th Tel. Co., 552 F. Supp. 131, 151 (D.D.C.
determine whether entry of the Cir. 1981)). Instead, courts have held 1982) (citations and internal quotations
proposed Final Judgment ‘‘is in the that: omitted); see also United States v. Alcan
public interest.’’ 15 U.S.C. 16(e)(1). In
[t]he balancing of competing social and Aluminum Ltd., 605 F. Supp. 619, 622
making that determination, the court, in
political interests affected by a proposed (W.D. Ky. 1985) (approving the consent
accordance with the statute as amended
in 2004, is required to consider: antitrust consent decree must be left, in the decree even though the court would
first instance, to the discretion of the have imposed a greater remedy).
(A) the competitive impact of such
Attorney General. The court’s role in
judgment, including termination of protecting the public interest is one of In its 2004 amendments to the
alleged violations, provisions for insuring that the government has not Tunney Act,1 Congress made clear its
enforcement and modification, duration breached its duty to the public in consenting intent to preserve the practical benefits
of relief sought, anticipated effects of to the decree. The court is required to of using consent decrees in antitrust
alternative remedies actually determine not whether a particular decree is enforcement, adding the unambiguous
considered, whether its terms are the one that will best serve society, but instruction that ‘‘[n]othing in this
ambiguous, and any other competitive whether the settlement in ‘‘within the
reaches of the public interest.’’ More section shall be construed to require the
considerations bearing upon the court to conduct an evidentiary hearing
adequacy of such judgment that the elaborate requirements might undermine the
effectiveness of antitrust enforcement by or to require the court to permit anyone
court deems necessary to a
consent decree. to intervene.’’ 15 U.S.C. 16(e)(2). The
determination of whether the consent
judgment is in the public interest; and Bechtel, 648 F.2d at 666 (emphasis procedure for the public interest
(B) the impact of entry of such added) (citations omitted). determination is left to the discretion of
judgment upon competition in the In determining whether a proposed the court, with the recognition that the
relevant market or markets, upon the settlement is in the public interest, ‘‘the court’s ‘‘scope of review remains
public generally and individuals court ‘must accord deference to the sharply proscribed by precedent and the
alleging specific injury from the government’s predictions about the nature of the Tunney Act proceedings.’’
violations set forth in the complaint efficacy of its remedies.’ ’’ United States SBC Commc’ns, 489 F. Supp. 2d at 11;
including consideration of the public v. U.S. Airways Grp., Inc., 38 F. Supp. see also United States v. Enova Corp.,
benefit, if any, to be derived from a 3d 69, 76 (D.D.C. 2014) (quoting SBC 107 F. Supp. 2d 10, 17 (D.D.C. 2000)
determination of the issues at trial. Commc’ns, 489 F. Supp. at 17). See also (‘‘[T]he Tunney Act expressly allows the
15 U.S.C. 16(e)(1). In considering Microsoft, 56 F.3d at 1461 (noting that court to make its public interest
these statutory factors, the court’s the government is entitled to deference determination on the basis of the
inquiry is necessarily a limited one as as to its ‘‘predictions as to the effect of competitive impact statement and
the government is entitled to ‘‘broad the proposed remedies’’); United States response to public comments alone.’’);
discretion to settle with the defendant v. Archer-Daniels-Midland Co., 272 F. US Airways, 38 F. Supp. 3d at 76
within the reaches of the public Supp. 2d 1, 6 (D.D.C. 2003) (noting that (same).
interest.’’ United States v. Microsoft the court should grant due respect to the
Corp., 56 F.3d 1448, 1461 (D.C. Cir. United States’ ‘‘prediction as to the
1995); see also United States v. SBC effect of the proposed remedies, its
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1 The 2004 amendments substituted ‘‘shall’’ for
Commc’ns, Inc., 489 F. Supp. 2d 1, 10– perception of the market structure, and ‘‘may’’ in directing relevant factors for courts to
11 (D.D.C. 2007) (assessing public its views of the nature of the case’’); consider and amended the list of factors to focus on
competitive considerations and to address
interest standard under the Tunney United States v. Morgan Stanley, 881 F.
potentially ambiguous judgment terms. Compare 15
Act); United States v. InBev N.V./S.A., Supp. 2d 563, 567–68 (S.D.N.Y. 2012) U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006);
No. 08–cv–1965 (JR), 2009 U.S. Dist. (explaining that the government is see also SBC Commc’ns, 489 F. Supp. 2d at 11
LEXIS 84787, at *3 (D.D.C. Aug. 11, entitled to deference in choice of (concluding that the 2004 amendments ‘‘effected
2009) (discussing nature of review of remedies). minimal changes’’ to Tunney Act review).
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IV. Summary of Public Comment and likely to reduce competition only V. Conclusion
Response of the United States insofar as they increased the incentive
and ability of Charter to foreclose After reviewing the public comment,
During the 60-day comment period, competition from nascent online video the United States continues to believe
the United States received one comment providers. Therefore, the Department’s that the proposed Final Judgment, as
from Amy R. Bloomfield, a Charter Complaint only addressed that issue. It drafted, provides an effective and
customer in North Carolina. Ms. is well-settled that comments, such as appropriate remedy for the antitrust
Bloomfield generally describes her poor Ms. Bloomfield’s comment, that are violations alleged in the Complaint, and
experience as a Charter customer. Ms. unrelated to the concerns identified in is therefore in the public interest. The
Bloomfield opposes the merger because the complaint are beyond the scope of United States will move this Court to
‘‘Time Warner [Cable] is a decent this Court’s Tunney Act review. See, enter the proposed Final Judgment after
company; Charter is not.’’ e.g., SBC Commc’ns, 489 F. Supp. 2d at the comment and this response are
The United States appreciates 14 (holding that ‘‘a district court is not published in the Federal Register.
receiving Ms. Bloomfield’s comment. permitted to ‘reach beyond the Dated: August 16, 2016.
Over the course of its ten-month complaint to evaluate claims that the Respectfully submitted,
investigation, the United States government did not make and to inquire /s/ lllllllllllllllllll
carefully considered the competitive as to why they were not made’ ’’) Robert Lepore,
effects of Charter’s proposed (quoting Microsoft, 56 F.3d at 1459) United States Department of Justice,
acquisitions of TWC and BHN, (emphasis in original); see also US Antitrust Division, 450 Fifth Street NW.,
including any possible effects on Airways, 38 F. Supp. 3d at 76. Suite 7000, Washington, DC 20530, Tel.:
customer service. As a result of its Accordingly, Ms. Bloomfield’s comment (202) 532–4928, Email: robert.lepore@
investigation, the United States does not provide a basis for rejecting the usdoj.gov.
concluded that these acquisitions were proposed Final Judgment. BILLING CODE P
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Document Created: 2018-02-09 11:40:03
Document Modified: 2018-02-09 11:40:03
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| FR Citation | 81 FR 57617 |
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