82 FR 40597 - United States v. DIRECTV Group Holdings, LLC, et al.; Public Comment and Response on Proposed Final Judgment

DEPARTMENT OF JUSTICE
Antitrust Division

Federal Register Volume 82, Issue 164 (August 25, 2017)

Page Range		40597-40601
FR Document		2017-18091
Federal Register, Volume 82 Issue 164 (Friday, August 25, 2017)
[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40597-40601]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-18091]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. DIRECTV Group Holdings, LLC, 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 v. DIRECTV 
Group Holdings, LLC, et al., Case No. 2:16-cv-08150-MWF-E (C.D. Cal.), 
together with the Response of the United States to Public Comment.
    Copies of the comment and the United States' Response are available 
for inspection at the Department of Justice Antitrust Division, 450 
Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site at https://www.justice.gov/atr/case/us-v-directv-group-holdings-llc-and-att-inc, 
and at the Office of the Clerk of the United States District Court for 
the Central District of California (Western Division), 312 N. Spring 
Street, Los Angeles, CA 90012. Copies of any of these materials may 
also be obtained upon request and payment of a copying fee.

Patricia A. Brink,
Director of Civil Enforcement.
FREDERICK S. YOUNG (DC Bar No. 421285)
[email protected]
U.S. DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 5th Street NW.
Washington, DC 20530
Telephone: 202-307-2869
Facsimile: 202-514-6381
Counsel for Plaintiff,
UNITED STATES OF AMERICA

United States District Court for the Central District of California 
Western Division

United States of America, Plaintiff, v. DIRECTV Group Holdings, LLC, 
et al., Defendants.

Case No. 2:16-cv-08150-MWF-E
Plaintiff United States' Response to Public Comment on the Proposed 
Final Judgment
Judge: Hon. Michael W. Fitzgerald
    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  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' 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. Sec.  16(d).

I. PROCEDURAL HISTORY

    On November 2, 2016, the United States filed a civil antitrust 
Complaint alleging that DIRECTV acted as the ringleader of a series of 
unlawful information exchanges between DIRECTV and three of its 
competitors--Cox Communications, Inc., Charter Communications, Inc. and 
AT&T (prior to its acquisition of DIRECTV)--during the companies' 
parallel negotiations to carry SportsNet LA, which holds the exclusive 
rights to telecast almost all live Dodgers games in the Los Angeles 
area. The Complaint alleges that DIRECTV unlawfully exchanged 
competitively sensitive information with Cox, Charter and AT&T during 
the companies' negotiations for the right to telecast SportsNet LA (the 
``Dodgers Channel''). In 2015, Defendant AT&T acquired DIRECTV, and 
AT&T was included as a defendant in this action as DIRECTV's successor 
in interest.
    The United States and Defendants subsequently reached a settlement 
and, on March 23, 2017, the United States filed a Stipulation and Order 
and proposed Final Judgment (ECF Nos. 31

[[Page 40598]]

and 31-1). The Court entered the Stipulation and Order on March 27, 
2017 (ECF No. 35). The proposed Final Judgment, if entered by the 
Court, would remedy the violation alleged in the Complaint by 
prohibiting Defendants from sharing or seeking to share competitively 
sensitive information with competing video distributors. Such 
information includes without limitation ``non-public information 
relating to negotiating position, tactics or strategy, video 
programming carriage plans, pricing or pricing strategies, costs, 
revenues, profits, margins, output, marketing, advertising, promotion 
or research and development.'' Proposed Final Judgment at 3 (ECF 31-1). 
At the same time, the United States filed a Competitive Impact 
Statement (``CIS'') (ECF No. 32), which explains how the proposed Final 
Judgment is designed to remedy the harm that resulted from Defendants' 
conduct.
    As required by the Tunney Act, the United States published the 
proposed Final Judgment and CIS in the Federal Register on April 13, 
2017. See 82 FR 17859. In addition, a summary of the terms of the 
proposed Final Judgment and CIS, together with directions for the 
submission of written comments, was published in both The Los Angeles 
Times and The Washington Post for seven days between April 6 and April 
14, 2017. The 60-day period for public comment ended on June 13, 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 almost two years 
of investigation and litigation by the Antitrust Division of the United 
States Department of Justice (``Department''). The Department conducted 
a comprehensive inquiry into the conduct of DIRECTV and the other 
companies involved to determine the facts of what occurred and the 
impact of that conduct on competition. The Department collected more 
than 100,000 business documents from DIRECTV and others, conducted 
numerous interviews of individuals and companies with potentially 
relevant information, obtained deposition testimony from a number of 
individuals, including those involved in the relevant communications, 
and required the Defendants to provide interrogatory responses 
explaining DIRECTV's conduct and any potential justifications for that 
conduct.
    As a result of this detailed investigation, the United States 
alleged in the Complaint that DIRECTV was the ringleader of 
information-sharing agreements with three different rivals and that 
DIRECTV and these rivals agreed to and did exchange non-public 
information about each company's ongoing negotiations to telecast the 
Dodgers Channel, as well as each company's future plans to carry--or 
not carry--the channel. The Complaint also alleges that each company 
engaged in this conduct in order to obtain bargaining leverage and 
reduce the risk that a rival would choose to carry the Dodgers Channel 
(while the company did not), resulting in a loss of subscribers to that 
rival. The Complaint further alleges that the information learned 
through these unlawful agreements was a material factor in each 
company's decision not to carry the Dodgers Channel, harming the 
competitive process for carriage of the Dodgers Channel and making it 
less likely that any of these companies would reach a deal because they 
no longer had to fear that a decision to refrain from carriage would 
result in subscribers switching to a competitor that offered the 
channel.
    The Complaint alleges that these agreements amounted to a restraint 
of trade in violation of Section 1 of the Sherman Act, which outlaws 
``[e]very contract, combination in the form of trust or otherwise, or 
conspiracy, in restraint of trade or commerce among the several 
States.'' 15 U.S.C. 1. The Complaint seeks injunctive relief to prevent 
DIRECTV and AT&T from sharing non-public information with any other 
multichannel video programming distributor (``MVPD'') \1\ about a 
variety of competitively sensitive topics concerning potential video 
programming distribution agreements.
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    \1\ MVPD is an industry acronym standing for multichannel video 
programming distributor, and it applies to a variety of providers of 
pay television services, including satellite companies (such as 
DIRECTV and DISH Network), cable companies (such as Cox and 
Charter), and telephone companies (such as AT&T and Verizon).
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    The proposed Final Judgment is designed to remedy the 
anticompetitive conduct identified in the Complaint. As explained in 
greater detail in the CIS, Section IV of the proposed Final Judgment 
provides that Defendants will not, directly or indirectly, communicate 
a broad array of competitively sensitive, non-public strategic 
information (such as negotiating strategy, carriage plans, or pricing) 
to any MVPD, will not request such information from any MVPD, and will 
not encourage or facilitate the communication of such information from 
any MVPD. At the same time, Section IV makes clear that the proposed 
Final Judgment does not prohibit Defendants from sharing or receiving 
competitively sensitive strategic information in certain specified 
circumstances. The Final Judgment also requires Defendants to designate 
an Antitrust Compliance Officer, who is responsible for implementing 
training and antitrust compliance programs and achieving full 
compliance with the Final Judgment. This compliance program is 
necessary considering the extensive communications among rival 
executives that facilitated Defendants' agreements. The Defendants will 
be subject to these compliance obligations throughout the five-year 
term of the proposed Final Judgment.
    The terms of the proposed Final Judgment closely track the relief 
sought in the Complaint and are intended to provide a prompt, certain 
and effective remedy to ensure that Defendants and their executives 
will not impede competition by sharing competitively sensitive 
information with their counterparts at rival MVPDs. The requirements 
and prohibitions provided for in the proposed Final Judgment will 
terminate Defendants' illegal conduct, prevent recurrence of the same 
or similar conduct in the future, and ensure that Defendants establish 
a robust antitrust compliance program. The proposed Final Judgment 
protects consumers by putting a stop to the anticompetitive information 
sharing alleged in the Complaint, while permitting certain potentially 
beneficial collaborations and transactions as described in detail in 
the CIS.

III. SUMMARY OF PUBLIC COMMENT AND RESPONSE OF THE UNITED STATES

    During the 60-day public comment period, the United States received 
one comment, from Joe Macera. Mr. Macera stated that, in his opinion, 
the fact that this case was filed also shows that collusion has 
occurred between DIRECTV and the owner of the Dodgers Channel, Time 
Warner Cable. Mr. Macera called for a separate suit against Time Warner 
Cable for unfair business practices and stated that this settlement 
should include additional relief in the form of either a fine against 
DIRECTV or a requirement that DIRECTV telecast live Dodgers games.
    The United States appreciates receiving Mr. Macera's comment. The 
United States conducted a comprehensive investigation of the companies 
involved in the communications detailed in the

[[Page 40599]]

Complaint. Based on that investigation, and as recounted in the 
Complaint, the United States concluded that DIRECTV had agreed with its 
rival MVPDs to share competitively sensitive information about their 
plans to carry the Dodgers Channel. The Complaint did not allege that 
Time Warner Cable was involved in the alleged illegal information 
sharing agreements, and the Complaint does not draw any conclusions 
about Time Warner Cable's conduct.
    It is well-settled that comments that are unrelated to the concerns 
identified in the Complaint are beyond the scope of this Court's Tunney 
Act review. See, e.g., United States v. SBC Commc'ns, Inc., 489 F. 
Supp. 2d 1, 14 (D.D.C. 2007) (explaining 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 United States v. Microsoft Corp., 56 F.3d 1448, 1459 (D.C. 
Cir. 1995))); see also United States v. U.S. Airways Group, Inc., 38 F. 
Supp. 3d 69, 76 (D.D.C. 2014) (``A court may not `construct its own 
hypothetical case and then evaluate the decree against that case.' '' 
(quoting Microsoft, 56 F.3d at 1459)). Accordingly, the portion of Mr. 
Macera's comment addressed to Time Warner Cable's conduct does not 
provide a basis for rejecting the proposed Final Judgment.
    Mr. Macera also called for additional relief beyond that included 
in the proposed Final Judgment, such as a financial penalty or a 
requirement that DIRECTV carry Dodgers telecasts. The Sherman Act, 
however, does not provide for civil penalties or civil fines. The 
injunctive relief sought by the Complaint has been obtained in the 
proposed Final Judgment, which fulfills the remedial goals of the 
Sherman Act to ``prevent and restrain'' antitrust violations. See 15 
U.S.C. Sec.  4 (investing district courts with equitable jurisdiction 
to ``prevent and restrain'' violations of the antitrust laws). No 
additional relief is needed to prevent and restrain DIRECTV from 
entering into information-sharing agreements such as those alleged in 
the Complaint.
    The United States' Complaint in this action also did not seek a 
requirement that any MVPD carry the Dodgers telecasts. Similarly, and 
as explained in the CIS, the proposed Final Judgment is not intended to 
compel any MVPD to reach an agreement to carry any particular video 
programming, including the Dodgers Channel. Negotiations between video 
programmers and MVPDs are often contentious, high-stakes undertakings 
where one or both sides threaten to walk away, or even temporarily 
terminate the relationship in order to secure a better deal. The 
proposed Final Judgment is not intended to address such negotiating 
tactics, or to impose any agreement upon Time Warner Cable or any MVPD 
that is not the result of an unfettered negotiation in the marketplace. 
Rather, the Final Judgment is intended to protect the competitive 
process for acquiring video programming from being corrupted by 
improper information sharing among rivals and to prevent harm to 
consumers when such collusion taints that competitive process and makes 
carriage on competitive terms less likely.

IV. STANDARD OF JUDICIAL REVIEW

    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). ``The APPA was enacted in 
1974 to preserve the integrity of and public confidence in procedures 
relating to settlements via consent decree procedures.'' United States 
v. BNS Inc., 858 F.2d 456, 459 (9th Cir. 1988) (noting that the APPA 
``mandates public notice of a proposed consent decree, a competitive 
impact statement by the government, a sixty-day period for written 
public comments, and published responses to the comments'' (citations 
omitted)). In making that ``public interest'' 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.'' Microsoft, 56 
F.3d at 1461; see generally SBC Commc'ns, 489 F. Supp. 2d 1 (assessing 
public interest standard under the Tunney Act); U.S. Airways, 38 F. 
Supp. 3d at 75 (explaining that the ``court's inquiry is limited'' in 
Tunney Act settlements); United States v. InBev N.V./S.A., No. 08-1965, 
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 mechanisms to enforce the final 
judgment are clear and manageable'').\2\
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    \2\ 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).
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    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; see also BNS, 858 F.2d at 462-63 (``[T]he APPA does 
not authorize a district court to base its public interest 
determination on antitrust concerns in markets other than those alleged 
in the government's complaint.''); United States v. Nat'l Broad. Co., 
449 F. Supp. 1127, 1144 (C.D. Cal.1978) (``[I]n evaluating a proposed 
consent decree, one highly significant factor is the degree to which 
the proposed decree advances and is consistent with the government's 
original prayer for relief.'' (citation omitted)). 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.'' BNS, 858 F.2d at 462 (quoting United States v. Bechtel Corp., 
648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 
1458-62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 
2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. As the Ninth Circuit 
has explained:
    [t]he balancing of competing social and political interests 
affected by a

[[Page 40600]]

proposed antitrust consent decree must be left, in the first instance, 
to the discretion of the Attorney General. See United States v. Nat'l 
Broad. Co., 449 F. Supp. 1127 (C.D. Cal. 1978). 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) (additional citations 
omitted).\3\
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    \3\ 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''); Nat'l Broad. Co., 449 F. Supp. 
at 1142 (under the APPA, ``a court's power to do very much about the 
terms of a particular decree, even after it has given the decree 
maximum, rather that minimum, judicial scrutiny, is a decidedly 
limited power'' (citation omitted)); 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' '').
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    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, 38 F. Supp. 3d 
at 75 (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).\4\ 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 (citation 
omitted).
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    \4\ See also U.S. Airways, 38 F. Supp. 3d at 75 (noting that 
``room must be made for the government to grant concessions in the 
negotiation process for settlements'' (quoting SBC Commc'ns, 489 F. 
Supp. 2d at 1461) (citing Microsoft, 56 F.3d at 1461)); United 
States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) 
(approving consent decree even though the court would have imposed a 
greater remedy).
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    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, 
38 F. Supp. 3d at 75 (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 (``[T]he 
`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. 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.\5\
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    \5\ See also United States v. Mid-Am. Dairymen, Inc., No. 73-CV-
681-W-1, 1977 U.S. Dist. LEXIS 15858, at *22 (W.D. Mo. May 17, 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, 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.'').
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    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, 38 F. Supp. 3d 
at 76 (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). This is 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 Sen. 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. ``A court can make its public interest 
determination based on the competitive impact statement and response to 
public comments alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citation 
omitted).

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 10, 2017.

Respectfully submitted,

PLAINTIFF UNITED STATES OF AMERICA
By: /s/FREDERICK S.YOUNG
FREDERICK S. YOUNG,

Attorney for the United States, U.S. Department of Justice, 
Antitrust Division, 450 5th Street NW., Washington, DC 20530, 
Telephone: 202-307-2869, Facsimile: 202-514-6381, Email: 
[email protected].

Exhibit 1

From: Joe Macera
To: ATR-Antitrust--Internet
Subject: AT&T and DirecTV Case Settlement
Date: Friday, March 24, 2017 12:10:45 p.m.
I am very disappointed with the DOJ decision to settle the AT&T and 
DirecTV case without affirmative action to end

[[Page 40601]]

the blackout of Dodger games. In my opinion collusion has occurred 
between DirecTV and Time Warner Cable (TWC) which was apparent in the 
filing of this case. The sharing of inside, confidential information 
between the parties has put TWC in the position to control their 
monopoly for the broadcast of Dodger games by knowing where all the 
competitors stand, giving them an unfair advantage in their 
negotiations. A settlement in favor of the public would be punishment 
of the parties either through a fine or requirement to carry the 
broadcasts and a separate suit against TWC for unfair business 
practices.

Joe Macera
Email:
Work Cell:
Personal Cell:

[FR Doc. 2017-18091 Filed 8-24-17; 8:45 am]
 BILLING CODE P
Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40601

the blackout of Dodger games. In my that Registrant was found guilty in state Based on the Government’s
opinion collusion has occurred between court of ‘‘multiple sexual assault counts submission, I find that more than 30
DirecTV and Time Warner Cable (TWC) and multiple counts of the days have now passed since the Show
which was apparent in the filing of this administering of a controlled substance Cause Order was served on Registrant,
case. The sharing of inside, confidential to aid in the commission of a felony.’’ and that neither Registrant, nor anyone
information between the parties has put Id. The Order then asserted that ‘‘[t]his purporting to represent him, has
TWC in the position to control their constitutes a conviction related to requested a hearing on the allegations or
monopoly for the broadcast of Dodger controlled substances under 21 U.S.C. submitted a written statement in lieu of
games by knowing where all the 824(a)(2)’’ and ‘‘acts which are hearing. I therefore find that Registrant
competitors stand, giving them an unfair inconsistent with the public interest.’’ has waived his right to request a hearing
advantage in their negotiations. A Id. (citing 21 U.S.C. 824(a)(4) & or to submit a written statement and
settlement in favor of the public would 823(f)(5)). issue this Decision and Order based on
be punishment of the parties either The Show Cause Order further alleged relevant evidence in the investigative
through a fine or requirement to carry that on June 23, 2015, Registrant’s record. See 21 CFR 1301.43(d) & (e).
the broadcasts and a separate suit medical license ‘‘was summarily Having reviewed the record, I conclude
against TWC for unfair business suspended’’ by the Nevada Board of that the Government is entitled to relief
practices. Medical Examiners and that he only on the loss of state authority
Joe Macera ‘‘currently lack[s] authority to handle ground. I make the following factual
Email: controlled substances in Nevada, the findings.
Work Cell: [S]tate in which [he is] registered with
the’’ Agency. Id. The Order thus Findings
Personal Cell:
asserted that Registrant’s ‘‘lack of Registrant is the holder of DEA
[FR Doc. 2017–18091 Filed 8–24–17; 8:45 am]
authority to handle controlled Certificate of Registration No.
BILLING CODE P BC9308936, pursuant to which he is
substances in Nevada is a separate and
independent ground to revoke [his] authorized to dispense controlled
registration.’’ Id. (citing 21 U.S.C. substances in schedules II through V as
DEPARTMENT OF JUSTICE a practitioner, at the registered address
802(21) and 824(a)(3)).
Drug Enforcement Administration The Show Cause Order notified of 8785 W. Warmsprings Rd., Suite 109,
Registrant of his right to request a Las Vegas, Nevada. GX 1. This
Binh M. Chung, M.D.; Decision and hearing on the allegations or to submit Registration expires on August 31, 2017.
Order a written statement while waiving his Id.
right to a hearing, the procedure for Registrant also holds a medical
On June 29, 2017, the Acting electing either option, and the license issued by the Nevada State
Assistant Administrator, Diversion consequence of failing to elect either Board of Medical Examiners. GX 3B
Control Division, issued an Order to option. Id. at 2–3 (citing 21 CFR (Order of Summary Suspension &
Show Cause to Binh M. Chung, M.D. 1301.43). Finally, the Show Cause Order Notice of Hearing). However, on June
(hereinafter, Registrant), of Las Vegas, notified Registrant of his right to submit 23, 2015, the Board’s Investigative
Nevada. The Show Cause Order a Corrective Action Plan. Id. at 3 (citing Committee immediately suspended his
proposed the revocation of Registrant’s 21 U.S.C. 824(c)(2)(C)). medical license based on ‘‘preliminary
Certificate of Registration and the denial On June 29, 2017, a DEA Diversion findings’’ that Registrant ‘‘injected a
of any pending application to renew his Investigator personally served the Show minor female [patient] with a
registration or for a new registration, on Cause Order on Registrant who was then medication that caused her to become
the grounds that: (1) He ‘‘ha[s] been incarcerated at the Clark County groggy’’ and proceeded ‘‘to abuse her.’’
convicted of a felony relating to a Detention Center, Las Vegas, Nevada. Id. at 2. While the Board’s Order set a
controlled substance’’; (2) he ‘‘do[es] not GX 3, at 2. According to the hearing for July 27, 2015 ‘‘to determine
have authority to handle controlled Government, as of August 15, 2017, whether [the] suspension may
substances in . . . Nevada, the [S]tate in Registrant had not requested a hearing continue,’’ according to the Board’s Web
which [he is] registered’’; and (3) he nor submitted a written statement in site, of which I take official notice, see
‘‘ha[s] committed acts which render lieu of requesting a hearing. 5 U.S.C. 556(e), the suspension remains
[his] registration inconsistent with the Supplemental Request for Final Agency in effect as of the date of this Order. I
public interest.’’ GX 2, at 1 (citing 21 Action, at 2; see also Supplemental therefore find that Registrant is not
U.S.C. 824(a)(2), (3), & (4)). Declaration of Diversion Investigator, at currently authorized to dispense
With respect to the Agency’s 1. The Government further represents controlled substances under the laws of
jurisdiction, the Show Cause Order that Registrant has not submitted a Nevada.
alleged that Registrant holds Certificate Corrective Action Plan. See On May 2, 2017, a Third Amended
of Registration No. BC9308936, which Supplemental Request for Final Agency Indictment was issued in the criminal
‘‘is valid for Drug Schedules II–V,’’ at Action, at 2; see also Supplemental proceeding brought by the State of
the address of ‘‘8785 Warm Springs Declaration of Diversion Investigator, at Nevada against Registrant. GX 3A, at 1.
Rd.[,] Suite 109, Las Vegas, NV.’’ Id. The 1–2. The indictment charged Registrant with,
Order also alleged that his registration On July 31, 2017, the Government inter alia, four counts of sexual assault;
‘‘expires . . . on August 31, 2017.’’ Id. submitted a Request for Final Agency one count of battery with intent to
As to the substantive grounds for the Action (RFAA) and an investigative commit a sexual assault; one count of
sradovich on DSK3GMQ082PROD with NOTICES

proceeding, the Show Cause Order record, and on August 16, 2017, it attempted sexual assault; and four
alleged that ‘‘[o]n May 22, 2017, submitted a Supplemental Request for counts of administering controlled
[Registrant was] found guilty of Final Agency Action. Therein, the substances including ketamine and/or
engaging in a scheme related to [his] Government seeks revocation of midazolam, to aid in the commission of
administering ketamine to sedate Registrant’s registration pursuant to a felony (sexual assault and/or a
patients and then raping them in [his] each of the three grounds set forth kidnapping). Id. at 2–5. On May 22,
medical office.’’ Id. The Order alleged above. 2017, following a trial, a jury found

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Document Created: 2018-10-24 12:42:32
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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Dates		Friday, March 24, 2017 12:10:45 p.m. I am very disappointed with the DOJ decision to settle the AT&T and DirecTV case without affirmative action to end the blackout of Dodger games. In my opinion collusion has occurred between DirecTV and Time Warner Cable (TWC) which was apparent in the filing of this case. The sharing of inside, confidential information between the parties has put TWC in the position to control their monopoly for the broadcast of Dodger games by knowing where all the competitors stand, giving them an unfair advantage in their negotiations. A settlement in favor of the public would be punishment of the parties either through a fine or requirement to carry the broadcasts and a separate suit against TWC for unfair business practices.
FR Citation		82 FR 40597
82 FR 40597 - United States v. DIRECTV Group Holdings, LLC, et al.; Public Comment and Response on Proposed Final Judgment

DEPARTMENT OF JUSTICEAntitrust Division

Federal Register Volume 82, Issue 164 (August 25, 2017)

DEPARTMENT OF JUSTICE
Antitrust Division
