83 FR 62964 - United States v. Sinclair Broadcast Group, Inc., et al.; Proposed Final Judgments and Competitive Impact Statement
DEPARTMENT OF JUSTICE
Antitrust Division Federal Register Volume 83, Issue 234 (December 6, 2018)
Antitrust Division
Federal Register Volume 83, Issue 234 (December 6, 2018)
| Page Range | 62964-62995 | |
| FR Document | 2018-26201 |
[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)] [Notices] [Pages 62964-62995] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-26201] [[Page 62963]] Vol. 83 Thursday, No. 234 December 6, 2018 Part II Department of Justice ----------------------------------------------------------------------- Antitrust Division ----------------------------------------------------------------------- United States v. Sinclair Broadcast Group, Inc., et al.; Proposed Final Judgments and Competitive Impact Statement; Notice Federal Register / Vol. 83 , No. 234 / Thursday, December 6, 2018 / Notices [[Page 62964]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division United States v. Sinclair Broadcast Group, Inc., et al.; Proposed Final Judgments and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that proposed Final Judgments, Stipulations, and a Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in United States of America v. Sinclair Broadcast Group, Inc., et al., Civil Action No. 1:18-cv-2609. On November 13, 2018, the United States filed a Complaint alleging that Sinclair Broadcast Group, Inc., Raycom Media, Inc., Tribune Media Company, Meredith Corporation, Griffin Communications, LLC, and Dreamcatcher Broadcasting, LLC (collectively, ``Defendants'') violated Section 1 of the Sherman Act, 15 U.S.C. 1, by agreeing to unlawfully exchange station-specific, competitively sensitive information regarding spot advertising revenues. The proposed Final Judgments, filed at the same time as the Complaint, prohibit sharing of competitively sensitive information, require Defendants to implement antitrust compliance training programs, and impose cooperation and reporting requirements on Defendants. Copies of the Complaint, proposed Final Judgments, Stipulations 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 Kendler, Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, Department of Justice, 450 Fifth Street NW, Suite 4000, Washington, DC 20530 (telephone: 202-616-5935). Patricia A. Brink, Director of Civil Enforcement. United States District Court for the District of Columbia United States of America, 450 Fifth Street NW, Washington, DC 20530, Plaintiff, v. Sinclair Broadcast Group, Inc., 10706 Beaver Dam Road, Hunt Valley, Maryland 21030; Raycom Media, Inc., 201 Monroe Street, Montgomery, AL 36104; Tribune Media Company, 435 North Michigan Avenue, Chicago, IL 60611; Meredith Corporation, 1716 Locust Street, Des Moines, IA 50309; Griffin Communications, LLC, 7401 N Kelley Avenue, Oklahoma City, OK 73111; and Dreamcatcher Broadcasting, LLC, 2016 Broadway, Santa Monica, CA 90404, Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan COMPLAINT The United States of America, acting under the direction of the Acting Attorney General of the United States, brings this civil antitrust action to obtain equitable relief against Defendants Sinclair Broadcast Group, Inc. (``Sinclair''), Raycom Media, Inc. (``Raycom''), Tribune Media Company (``Tribune''), Meredith Corporation (``Meredith''), Griffin Communications, LLC (``Griffin''), and Dreamcatcher Broadcasting, LLC (``Dreamcatcher''), alleging as follows: I. NATURE OF THE ACTION 1. This action challenges under Section 1 of the Sherman Act Defendants' agreements to unlawfully exchange competitively sensitive information among broadcast television stations. 2. Sinclair, Raycom, Tribune, Meredith, Griffin, and Dreamcatcher (``Defendants'') and certain other television broadcast station groups (``Other Broadcasters'') compete in various configurations in a number of designated marketing areas (``DMAs'') in the market for broadcast television spot advertising. Certain national sales representation firms (``Sales Rep Firms'') represent broadcast station groups, including the Defendants, in their sales of spot advertising to advertisers. Defendants', Other Broadcasters', and Sales Rep Firms' concerted behavior in exchanging competitively sensitive information has enabled the Defendants and Other Broadcasters to reduce competition in the sale of broadcast television spot advertising where they purport to compete head to head. 3. Defendants' agreements are restraints of trade that are unlawful under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The Court should therefore enjoin Defendants from exchanging competitively sensitive information with and among competing broadcast television stations. II. JURISDICTION AND VENUE 4. Each Defendant sells spot advertising to advertisers throughout the United States, or owns and operates broadcast television stations in multiple states or in DMAs that cross state lines. Sales Rep Firms represent broadcast stations throughout the United States, including each of the Defendants, in the sale of spot advertising to advertisers throughout the United States. Such activities, including the exchanges of competitively sensitive information featured in this Complaint, are in the flow of and substantially affect interstate commerce. The Court has subject matter jurisdiction under Section 4 of the Sherman Act, 15 U.S.C. Sec. 4, and under 28 U.S.C. Sec. Sec. 1331 and 1337, to prevent and restrain the Defendants from violating Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. 5. Defendants have consented to venue and personal jurisdiction in this District. Venue is proper in this judicial district under Section 12 of the Clayton Act, 15 U.S.C. Sec. 22, and 28 U.S.C. Sec. 1391. III. DEFENDANTS 6. Defendant Sinclair is a Maryland corporation with its principal place of business in Hunt Valley, Maryland. Sinclair owns or operates 130 television stations in 87 DMAs and had over $2.7 billion in revenues in 2017. 7. Defendant Raycom is a Delaware corporation with its principal place of business in Montgomery, Alabama. Raycom owns or operates 55 television stations in 43 DMAs and had over $670 million in revenues in 2017. 8. Defendant Tribune is a Delaware corporation with its principal place of business in Chicago, Illinois. Tribune owns or operates 41 television stations in 31 DMAs and had over $1.8 billion in revenues in 2017. 9. Defendant Meredith is an Iowa corporation with its principal place of business in Des Moines, Iowa. Meredith owns or operates 17 television stations in 12 DMAs and had over $1.7 billion in revenues in 2017. 10. Defendant Griffin is an Oklahoma corporation with its principal place of business in Oklahoma City, Oklahoma. Griffin owns or operates four television stations in two DMAs and had over $60 million in revenues in 2017. 11. Defendant Dreamcatcher is a Delaware corporation with its principal place of business in Santa Monica, California. Dreamcatcher owns or operates three television stations in two DMAs and had over $50 million in revenues in 2017. IV. INDUSTRY BACKGROUND 12. Broadcast television is important to both viewers and advertisers. For viewers, broadcast stations, including local affiliates of ABC, CBS, FOX, and NBC (collectively, the ``Big 4'' stations), offer not only highly rated entertainment and sports programming, but also local reporting of the news and events in their own communities and regions. The wide popularity of broadcast station programming--and the concomitant opportunity to reach a large local audience--also make broadcast television critical to advertisers, including local businesses that seek to reach potential customers in their own communities. 13. Broadcast stations sell advertising ``spots'' during breaks in their programming. [[Page 62965]] An advertiser purchases spots from a broadcast station to communicate its message to viewers within the DMA in which the broadcast television station is located. 14. Broadcast stations typically divide their sale of spot advertising into two categories: local sales and national sales. Local sales are sales a broadcast station makes through its own local sales staff, typically to advertisers located within the DMA. National sales are sales a broadcast station makes through either a Sales Rep Firm or through a centrally located broadcast group staff, typically to regional or national advertisers. 15. Sales Rep Firms represent broadcast stations in negotiations with advertisers' or advertisers' agents regarding the sale of broadcast stations' spot advertising. There are two primary Sales Rep Firms in the United States. Often a Sales Rep Firm represents two or more competing stations in the same DMA. In those cases, the Sales Rep Firms purportedly erect firewalls to prevent coordination and information sharing between sales teams representing competing stations. V. THE UNLAWFUL AGREEMENTS 16. Defendants and Other Broadcasters have agreed in many DMAs across the United States to reciprocally exchange revenue pacing information. Certain Defendants also engaged in the exchange of other forms of competitively sensitive sales information in certain DMAs. Pacing compares a broadcast station's revenues booked for a certain time period to the revenues booked for the same point in time in the previous year. Pacing indicates how each station is performing versus the rest of the market and provides insight into each station's remaining spot advertising inventory for the period. 17. Defendants' exchange of competitively sensitive information has taken at least two forms. 18. First, Defendants and Other Broadcasters regularly exchanged pacing information through the Sales Rep Firms. At least once per quarter, but frequently more often, the Sales Rep Firms representing the Big 4 stations in a DMA exchanged real-time pacing information regarding each station's revenues, and reported the information to the Defendants and the other Big 4 station owners in the DMA. Typically, the exchanges included data on individual stations' booked sales for current and future months as well as a comparison to past periods. To the extent a Sales Rep Firm represents more than one Big 4 station in a DMA through sales teams separated by a supposed firewall, the exchange of pacing and other competitively sensitive information occurred between the sales teams and through those firewalls. Once given to the Defendants and Other Broadcasters in the DMA, the competitors' pacing information was then disseminated to the stations' sales managers and other individuals with authority over pricing and sales for the broadcast stations. These exchanges occurred with Defendants' knowledge and frequently at Defendants' instruction, and occurred in DMAs across the United States. 19. Second, in some DMAs, Defendants and Other Broadcasters exchanged competitively sensitive information, including real-time pacing information for booked sales for current and future months, directly between broadcast station employees. These exchanges predominantly concerned local sales, but sometimes pertained to all sales or national sales. 20. These exchanges of pacing information allowed stations to better understand, in real time, the availability of inventory on competitors' stations, which is often a key factor affecting negotiations with buyers over spot advertising prices. The exchanges also helped stations to anticipate whether competitors were likely to raise, maintain, or lower spot advertising prices. Understanding competitors' pacing can help stations gauge competitors' and advertisers' negotiation strategies, inform their own pricing strategies, and help them resist more effectively advertisers' attempts to obtain lower prices by playing stations off of one another. Defendants' information exchanges therefore distorted the normal price-setting mechanism in the spot advertising market and harmed the competitive process. 21. Defendants' and Other Broadcasters' regular information exchanges, directly and through the Sales Rep Firms, reflect concerted action between horizontal competitors in the broadcast television spot advertising market. VI. VIOLATION ALLEGED (Violation of Section 1 of the Sherman Act) 22. The United States repeats and realleges paragraphs 1 through 21 as if fully set forth herein. 23. Defendants violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, by agreeing to exchange competitively sensitive information, either directly or through Sales Rep Firms. Defendants' exchange of pacing information resulted in anticompetitive effects in the broadcast television spot advertising markets in many DMAs throughout the United States. 24. The scheme consists of exchanges between Defendants and Other Broadcasters, either directly or through the Sales Rep Firms, in many DMAs, of their stations' revenue pacing information or, for certain Defendants in certain DMAs, other competitively sensitive information concerning spot advertising sales. 25. These unlawful information sharing agreements between Defendants, Other Broadcasters, and Sales Rep Firms have had, and likely will continue to have, anticompetitive effects in spot advertising markets by disrupting the normal mechanisms for negotiating and setting prices and harming the competitive process. 26. Defendants' agreements to exchange competitively sensitive information are unreasonable restraints of interstate trade and commerce. This offense is likely to continue and recur unless the requested relief is granted. VII. REQUESTED RELIEF 27. The United States requests that the Court: a. adjudge that the information sharing agreements unreasonably restrain trade and are unlawful under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1; b. permanently enjoin and restrain Defendants from sharing pacing or other competitively sensitive information or agreeing to share such information with any other broadcast station or broadcast station group, directly or indirectly, and requiring Defendants to take such internal measures as are necessary to ensure compliance with that injunction; 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 13, 2018 Respectfully submitted, FOR PLAINTIFF UNITED STATES OF AMERICA, ----------------------------------------------------------------------- Makan Delrahim (D.C. Bar #457795), Assistant Attorney General for Antitrust. ----------------------------------------------------------------------- William J. Rinner, Acting Chief of Staff and Senior Counsel. ----------------------------------------------------------------------- Patricia A. Brink, Director of Civil Enforcement. ----------------------------------------------------------------------- Owen M. Kendler, Chief, Media, Entertainment & Professional Services Section. ----------------------------------------------------------------------- Yvette Tarlov (D.C. Bar #442452), Assistant Chief, Media, Entertainment & Professional Services Section. ----------------------------------------------------------------------- Lee F. Berger (D.C. Bar #482435), Richard A. Hellings, Jr., Gregg Malawer (D.C. Bar #481685), Bennett J. Matelson (D.C. Bar #454551), Monsura A. Sirajee, United States Department of Justice Antitrust Division, Media, Entertainment & Professional Services Section, 450 Fifth Street, N.W., Suite 4000, Washington, DC 20530, Telephone: (202) 514-0230, Facsimile: (202) 514-7308. United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Sinclair Broadcast Group, Inc., among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the [[Page 62966]] provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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 and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Sinclair Broadcast Group, Inc., a Maryland corporation with its headquarters in Hunt Valley, Maryland, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate [[Page 62967]] Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)-(c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and [[Page 62968]] documents for which Defendant claims protection under the attorney- client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 [[Page 62969]] party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street, NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, ___ [name], ___ [position] at ___ [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: EXHIBIT 2 United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 1. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 2. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and [[Page 62970]] directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 4. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 5. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 6. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Raycom Media, Inc., among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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 and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Raycom Media, Inc., a Delaware corporation with its headquarters in Birmingham, Alabama, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. Notwithstanding any other provision contained herein, this Final Judgment does not apply to broadcast television stations owned by Gray Television, Inc. that were not owned by Raycom Media, Inc. as of October 1, 2018. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or [[Page 62971]] 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)-(c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; [[Page 62972]] 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and documents for which Defendant claims protection under the attorney-client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant [[Page 62973]] related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding [[Page 62974]] the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, ___ [name],___ [position] at___ [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: Exhibit 2 United States District Court for the District of Columbia United States of America; Plaintiff, v. SINCLAIR BROADCAST GROUP, INC., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 1. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 2. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 4. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 5. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 6. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Tribune Media Company, among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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 and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Tribune Media Company, a Delaware corporation with its headquarters in Chicago, Illinois, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public [[Page 62975]] sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate [[Page 62976]] Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)-(c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and documents for which Defendant claims protection under the attorney-client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of [[Page 62977]] Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven years from [[Page 62978]] 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street, NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, __ [name], __ [position] at __ [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: Exhibit 2 United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 1. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 2. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 4. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 5. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 6. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Meredith Corporation, among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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: [[Page 62979]] I. JURISDICTION This Court has jurisdiction over the subject matter and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Meredith Corporation, an Iowa corporation with its headquarters in Des Moines, Iowa, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and [[Page 62980]] iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)-(c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and documents for which Defendant claims protection under the attorney-client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this [[Page 62981]] Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 [[Page 62982]] Federal Rules of Civil Procedure, and Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, __ [name], __ [position] at [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: Exhibit 2 United States District Court for the District of Columbia United States of America; Plaintiff, v.Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 7. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 8. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. [[Page 62983]] 9. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 10. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 11. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 12. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Griffin Communications, LLC, among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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 and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Griffin Communications, LLC, an Oklahoma limited liability company with its headquarters in Oklahoma City, Oklahoma, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, [[Page 62984]] 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)-(c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty [[Page 62985]] days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and documents for which Defendant claims protection under the attorney-client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case [[Page 62986]] of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if [[Page 62987]] you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, __ [name], __ [position] at __ [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: Exhibit 2 United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 13. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 14. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. 15. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 16. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 17. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 18. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al. Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan [PROPOSED] FINAL JUDGMENT WHEREAS, Plaintiff, United States of America, filed its Complaint on November __, 2018, alleging that Defendant Dreamcatcher Broadcasting, LLC, among others, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, 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 WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, the United States and Defendant agree to be bound by the provisions of this Final Judgment pending its approval by this Court; AND WHEREAS, the Defendant agrees to undertake certain actions and to refrain from engaging in certain forms of information sharing with its competitors; 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 and each of the parties to this action. The allegations in the Complaint arise under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. See 28 U.S.C. Sec. 1331. II. DEFINITIONS As used in this Final Judgment: A. ``Advertiser'' means an advertiser, an advertiser's buying agent, or an advertiser's representative. B. ``Agreement'' means any agreement, understanding, pact, contract, or arrangement, formal or informal, oral or written, between two or more Persons. C. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' means to provide, send, discuss, circulate, exchange, request, or solicit information, whether directly or indirectly, and regardless of the means by which it is accomplished, including orally or by written means of any kind, such as electronic communications, e- mails, facsimiles, telephone communications, voicemails, text messages, audio recordings, meetings, interviews, correspondence, exchange of written or recorded information, or face-to-face meetings. D. ``Competitively Sensitive Information'' means any of the following information, less than eighteen months old, of Defendant or any broadcast television station regarding the sale of spot advertising on broadcast television stations: Non-Public Information relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. Reports containing only aggregated market-level or national data are not Competitively Sensitive Information, but reports (including by paid subscription) that are customized or confidential to a particular Station or broadcast television station group are Competitively Sensitive Information. E. ``Cooperative Agreement'' means (1) joint sales agreements, joint operating agreements, local marketing agreements, news share agreements, or shared services agreements, or (2) any agreement through which a Person exercises control over any broadcast television station not owned by the Person. F. ``Defendant'' means Dreamcatcher Broadcasting, LLC, a Delaware corporation with its headquarters in Santa Monica, California, its successors and assigns, and its subsidiaries, divisions, and Stations, and their directors, officers, and employees. G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen Company and used by the Investing in Television BIA Market Report 2018. H. ``Management'' means all directors and officers of Defendant, or any other employee with management or supervisory responsibilities for Defendant's business or operations related to the sale of spot advertising on any Station. I. ``Non-Public Information'' means information that is not available from public sources or generally available to the public. Measurement or quantification of a Station's future holding capacity is Non-Public Information, but measurement or quantification of a Station's past holding capacity is not Non-Public Information. For the avoidance of doubt, the fact that information is available by paid subscription does not on its own render the information public. [[Page 62988]] J. ``Person'' means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. K. ``Sales Representative Firm'' means any organization, including without limitation Katz Media Group, Inc. and Cox Reps, Inc., and their respective subsidiaries and divisions, that represents a Station or its owner in the sale of spot advertising. L. ``Sales Representative Firm Manager'' means, for each of Defendant's Sales Representative Firms, the employee of the Sales Representative Firm with primary responsibility for the relationship with Defendant. M. ``Sales Staff'' means Defendant's employees with responsibility for the sale of spot advertising on any Station. N. ``Station'' means any broadcast television station, its successors and assigns, and its subsidiaries, divisions, groups, and its owner or operator and its directors, officers, managers, and employees, unless a Station owns, is owned by, or is under common ownership with a Sales Representative Firm, in which case that Sales Representative Firm will not be considered a Station. III. APPLICABILITY This Final Judgment applies to Defendant, other Persons in active concert or participation with Defendant who receive actual notice of this Final Judgment by personal service or otherwise, and any Person that signs an Acknowledgment of Applicability, attached as Exhibit 2, to the extent set forth therein, as a condition of the purchase of a Station owned by Defendant as of October 1, 2018. This Final Judgment applies to Defendant's actions performed under any Cooperative Agreement, even if those actions are taken on behalf of a third party. This Final Judgment is fully enforceable, including by penalty of contempt, against all of the foregoing. IV. PROHIBITED CONDUCT A. Defendant's Management and Sales Staff shall not, directly or indirectly: 1. Communicate Competitively Sensitive Information to any Station in the same DMA it does not own or operate; 2. Knowingly use Competitively Sensitive Information from or regarding any Station in the same DMA it does not own or operate; 3. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any Station in the same DMA it does not own or operate; or 4. Attempt to enter into, enter into, maintain, or enforce any agreement to Communicate Competitively Sensitive Information with any Station in the same DMA it does not own or operate. B. The prohibitions under Paragraph IV(A) apply to Defendant's Communicating or agreeing to Communicate through a Sales Representative Firm or a third-party agent at Defendant's instruction or request. C. Defendant shall not sell any Station owned by the Defendant as of October 1, 2018 to any Person unless that Person has first executed the Acknowledgment of Applicability, attached as Exhibit 2. Defendant shall submit any Acknowledgement of Applicability to the United States within 15 days of consummating the sale of such Station. The United States, in its sole discretion, may waive the prohibition in this Paragraph IV(C) on a Station-by-Station basis. Alternatively, the United States and the Person signing the Acknowledgement of Applicability may agree to void the Acknowledgement of Applicability at any time. The first sentence of this paragraph shall not apply to the sale of any Station to a Person already bound to a final judgment entered by a court regarding the Communication of Competitively Sensitive Information. V. CONDUCT NOT PROHIBITED A. Nothing in Section IV shall prohibit Defendant from Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information with an actual or prospective Advertiser, except that, if the Advertiser is another Station, Defendant's Communicating, using, or encouraging or facilitating the Communication of, Competitively Sensitive Information is excluded from the terms of Section IV only insofar as is reasonably necessary to negotiate the sale of spot advertising on broadcast television stations. For the avoidance of doubt, Defendant is not prohibited from internally using Competitively Sensitive Information received from an Advertiser that is a Station under the preceding sentence, but Defendant is prohibited from Communicating that Competitively Sensitive Information to a Station in the same DMA that it does not own or operate. B. Nothing in Section IV shall prohibit Defendant from, after securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating, using, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information with any Station when such Communication or use is (a) for the purpose of evaluating or effectuating a bona fide acquisition, disposition, or exchange of Stations or related assets, or (b) reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration. With respect to any such agreement: 1. For all agreements under Part V(B)(a) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment, Defendant shall maintain documents sufficient to show: i. the specific transaction or proposed transaction to which the sharing of Competitively Sensitive Information relates; ii. the employees, identified with reasonable specificity, who are involved in the sharing of Competitively Sensitive Information; and iii. the termination date or event of the sharing of Competitively Sensitive Information. 2. All agreements under Part V(B)(b) with any other Station to Communicate Competitively Sensitive Information that Defendant enters into, renews, or affirmatively extends after the date of entry of this Final Judgment shall be in writing, and shall: i. identify and describe, with specificity, the collaboration to which it is ancillary; ii. be narrowly tailored to permit the Communication of Competitively Sensitive Information only when reasonably necessary and only to the employees reasonably necessary to effectuate the collaboration; iii. identify with reasonable specificity the Competitively Sensitive Information Communicated pursuant to the agreement and identify the employees to receive the Competitively Sensitive Information; iv. contain a specific termination date or event; and v. be signed by all parties to the agreement, including any modifications to the agreement. 3. For Communications under Part V(B)(a) above, Defendant shall maintain copies of all materials required under Paragraph V(B)(1) for five years or the duration of the Final Judgment, whichever is shorter, following entry into any agreement to Communicate or receive Competitively Sensitive Information, and Defendant shall make such documents available to the United States upon request, if such request is made during the preservation period. 4. For Communications under Part V(B)(b) above, Defendant shall furnish a copy of all materials required under Paragraph V(B)(2) to the United States within thirty days of the entry, renewal, or extension of the agreement. 5. For purposes of this Section V(B) only, a Joint Sales Agreement, Local Marketing Agreement, or similar agreement pursuant to which the Defendant Communicates, uses, encourages or facilitates the Communication of, or attempts to enter into, enters into, maintains, or enforces any agreement to Communicate Competitively Sensitive Information related solely to the sale of spot advertising for which Defendant is responsible on a Station, shall be considered a ``legitimate competitor collaboration'' under Part V(B)(b). C. Nothing in Section IV shall prohibit Defendant from engaging in conduct in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and their progeny. D. Nothing in Section IV prohibits Defendant from (1) Communicating, encouraging or facilitating the Communication of, or attempting to enter into, entering into, maintaining, or enforcing any agreement to Communicate Competitively Sensitive Information for the purpose of aggregation if (a) Competitively Sensitive Information is sent to or received from, and the aggregation is managed by, a third party not owned or operated by any Station; (b) the information disseminated by the aggregator is limited to historical total broadcast television station revenue or other geographic or characteristic categorization (e.g., national, local, or political sales [[Page 62989]] revenue); and (c) any information disseminated is sufficiently aggregated such that it would not allow a recipient to identify, deduce, or estimate the prices or pacing of any individual broadcast television station not owned or operated by that recipient; or (2) using information that meets the requirements of Parts V(D)(1)(a)- (c). VI. REQUIRED CONDUCT A. Within ten days of entry of this Final Judgment, Defendant shall appoint an Antitrust Compliance Officer who is an internal employee or Officer of the Defendant, and identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Within forty-five days of a vacancy in the Antitrust Compliance Officer position, Defendant shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer's name, business address, telephone number, and email address. Defendant's initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall have, or shall retain outside counsel who has, the following minimum qualifications: 1. be an active member in good standing of the bar in any U.S. jurisdiction; and 2. have at least five years' experience in legal practice, including experience with antitrust matters, unless finding an Antitrust Compliance Officer or outside counsel meeting this experience requirement is a hardship on or is not reasonably available to the Defendant, under which circumstances the Defendant may select an Antitrust Compliance Officer or shall retain outside counsel who has at least five years' experience in legal practice, including experience with regulatory or compliance matters. C. The Antitrust Compliance Officer shall, directly or through the employees or counsel working at the Antitrust Compliance Officer's responsibility and direction: 1. within fourteen days of entry of the Final Judgment, furnish to all of Defendant's Management and Sales Staff and Sales Representative Firm Managers a copy of this Final Judgment, the Competitive Impact Statement filed by the United States with the Court, and a cover letter in a form attached as Exhibit 1; 2. within fourteen days of entry of the Final Judgment, in a manner to be devised by Defendant and approved by the United States, provide Defendant's Management and Sales Staff reasonable notice of the meaning and requirements of this Final Judgment; 3. annually brief Defendant's Management and Sales Staff on the meaning and requirements of this Final Judgment and the U.S. antitrust laws; 4. brief any person who succeeds a person in any position identified in Paragraph VI(C)(3), within sixty days of such succession; 5. obtain from each person designated in Paragraph VI(C)(3) or VI(C)(4), within thirty days of that person's receipt of the Final Judgment, a certification that the person (i) has read and understands and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of the Final Judgment that has not been reported to Defendant; and (iii) understands that failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court; 6. annually communicate to Defendant's Management and Sales Staff that they may disclose to the Antitrust Compliance Officer, without reprisal for such disclosure, information concerning any violation or potential violation of this Final Judgment or the U.S. antitrust laws by Defendant; 7. within thirty days of the latest filing of the Complaint, Proposed Final Judgment, or Competitive Impact Statement in this action, Defendant shall provide notice, in each DMA in which Defendant owns or operates a Station, to (i) every full power Station in that DMA that sells broadcast television spot advertising that Defendant does not own or operate and (ii) any Sales Representative Firm selling advertising in that DMA on behalf of Defendant, of the Complaint, Proposed Final Judgment, and Competitive Impact Statement in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion. Defendant shall provide the United States with its proposal, including the list of recipients, within ten days of the filing of the Complaint; and 8. maintain for five years or until expiration of the Final Judgement, whichever is shorter, a copy of all materials required to be issued under Paragraph VI(C), and furnish them to the United States within ten days if requested to do so, except documents protected under the attorney-client privilege or the attorney work- product doctrine. For all materials required to be furnished under Paragraph VI(C) which Defendant claims are protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log. D. Defendant shall: 1. upon Management or the Antitrust Compliance Officer learning of any violation or potential violation of any of the terms and conditions contained in this Final Judgment, (i) promptly take appropriate action to investigate, and in the event of a violation, terminate or modify the activity so as to comply with this Final Judgment, (ii) maintain all documents related to any violation or potential violation of this Final Judgment for a period of five years or the duration of this Final Judgement, whichever is shorter, and (iii) maintain, and furnish to the United States at the United States' request, a log of (a) all such documents and documents for which Defendant claims protection under the attorney-client privilege or the attorney work product doctrine, and (b) all potential and actual violations, even if no documentary evidence regarding the violations exist; 2. within thirty days of Management or the Antitrust Compliance Officer learning of any such violation or potential violation of any of the terms and conditions contained in this Final Judgment, file with the United States a statement describing any violation or potential violation of any of the terms and conditions contained in this Final Judgment, which shall include a description of any Communications constituting the violation or potential violation, including the date and place of the Communication, the Persons involved, and the subject matter of the Communication; 3. establish a whistleblower protection policy, which provides that any employee may disclose, without reprisal for such disclosure, to the Antitrust Compliance Officer information concerning any violation or potential violation by the Defendant of this Final Judgment or U.S. antitrust laws; 4. have its CEO, General Counsel or Chief Legal Officer certify in writing to the United States annually on the anniversary date of the entry of this Final Judgment that Defendant has complied with the provisions of this Final Judgment; 5. maintain and produce to the United States upon request: (i) a list identifying all employees having received the annual antitrust briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) copies of all materials distributed as part of the annual antitrust briefing required under Paragraphs VI(C)(3) and V(C)(4). For all materials requested to be produced under this Paragraph VI(D)(5) for which Defendant claims is protected under the attorney-client privilege or the attorney work-product doctrine, Defendant shall furnish to the United States a privilege log; and 6. instruct each Sales Representative Firm Manager that the Sales Representative Firm shall not Communicate any of Defendant's Competitively Sensitive Information in a way that would violate Sections IV and V of this Final Judgment if the Sales Representative Firm were included in the definition of ``Defendant'' in Paragraph II(F), in a form and manner to be proposed by Defendant and approved by the United States in its sole discretion, maintained and produced to the United States upon request. E. For the avoidance of doubt, the term ``potential violation'' as used in Paragraph VI(D) does not include the discussion of future conduct. F. If Defendant acquires a Station after entry of this Final Judgment, this Section VI will not apply to that acquired Station or the employees of that acquired Station until 120 days after closing of the acquisition of that acquired Station. VII. DEFENDANT'S COOPERATION A. Defendant shall cooperate fully and truthfully with the United States in any investigation or litigation examining whether or alleging that Defendant, any Station that Defendant does not own or operate, or any Sales Representative Firm Communicated Competitively Sensitive Information with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1. Defendant shall use its best efforts to ensure that all current and former officers, directors, employees, and agents also fully and promptly cooperate with the United States. The full, truthful, and continuing cooperation of Defendant shall include, but not be limited to: 1. providing sworn testimony, that is not protected by the attorney-client privilege or [[Page 62990]] the attorney work product doctrine, to the United States regarding the Communicating of Competitively Sensitive Information or any agreement with any other Station it does not own or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information while an employee of the Defendant; 2. producing, upon request of the United States, all documents, data, and other materials, wherever located, to the extent not protected under the attorney-client privilege or the attorney work- product doctrine, in the possession, custody, or control of Defendant, that relate to the Communication of Competitively Sensitive Information or any agreement with any other Station or such other Station's Sales Representative Firm to Communicate Competitively Sensitive Information, and a log of documents protected by the attorney-client privilege or the attorney work product doctrine; 3. making available for interview any officers, directors, employees, and agents of Defendant if so requested on reasonable notice by the United States; and 4. testifying at trial and other judicial proceedings fully, truthfully, and under oath, when called upon to do so by the United States; 5. provided however, that the obligations of Defendant to cooperate fully with the United States as described in this Section VII shall cease upon the conclusion of all of the United States' investigations and the United States' litigations examining whether or alleging that Defendant, any Station that Defendant does not own or operate or such other Station's Sales Representative Firm Communicated Competitively Sensitive Information or with or among Defendant or any other Station or any Sales Representative Firm in violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1, including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such matter, at which point the United States will provide written notice to Defendant that its obligations under this Section VII have expired. B. Defendant is obligated to impose a litigation hold until the United States provides written notice to the Defendant that its obligations under this Section VII have expired. This Paragraph VII(B) does not apply to documents created after entry of this Final Judgment. C. Subject to the full, truthful, and continuing cooperation of Defendant, as defined in Paragraph VII(A), the United States will not bring any further civil action or any criminal charges against Defendant related to any Communication of Competitively Sensitive Information or any agreement to Communicate Competitively Sensitive Information with any other Station it does not own or operate or such other Station's Sales Representative Firm when that agreement: 1. was Communicated, entered into and terminated on or before the date of the filing of the Complaint in this action (or in the case of a Station that is acquired by Defendant after entry of this Final Judgment, was Communicated or entered into before the acquisition and terminated within 120 days after the closing of the acquisition); and 2. does not constitute or include an agreement to fix prices or divide markets. D. The United States' agreement set forth in Paragraph VII(C) does not apply to any acts of perjury or subornation of perjury (18 U.S.C. Sec. Sec. 1621-22), making a false statement or declaration (18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec. 401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.) by the Defendant or its officers, directors, and employees. The United States' agreement set forth in Paragraph VII(C) does not release any claims against any Sales Representative Firm. VIII. COMPLIANCE INSPECTION A. For the purposes of determining or securing compliance with this Final Judgment or of any related orders, or of determining whether the Final Judgment should be modified, 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 Defendant, be permitted: 1. to access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide electronic or hard copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters that are the subject of this Final Judgment, not protected by the attorney-client privilege or the attorney work product doctrine; and 2. to interview, either informally or on the record, Defendant's 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 Defendant; and 3. to obtain from Defendant written reports or responses to written interrogatories, of information not protected by the attorney-client privilege or attorney work product doctrine, under oath if requested, relating to any matters that are the subject of this Final Judgment as may be requested. B. No information or documents obtained by the means provided in this Section VIII 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 for law enforcement purposes, or as otherwise required by law. C. If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies 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 Defendant marks 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 Defendant ten calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding). IX. 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. X. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including its right to seek an order of contempt from this Court. Defendant agrees that in any civil contempt action, any motion to show cause, or any similar civil action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Defendant waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Defendant agrees that it may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Defendant has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Defendant, whether litigated or resolved prior to litigation, Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts' fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. XI. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven 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 Defendant that the continuation of the Final Judgment no longer is necessary or in the public interest. XII. NOTICE For purposes of this Final Judgment, any notice or other communication required to be [[Page 62991]] provided to the United States shall be sent to the person at the address set forth below (or such other addresses as the United States may specify in writing to Defendant): Chief, Media, Entertainment, and Professional Services Section, U.S. Department of Justice, Antitrust Division, 450 Fifth Street, NW, Suite 4000, Washington, D.C. 20530. XIII. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. IT IS SO ORDERED by the Court, this __ day of __, 201__. Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 ----------------------------------------------------------------------- United States District Judge Exhibit 1 [Company Letterhead] [Name and Address of Antitrust Compliance Officer] Re: Prohibitions Against Sharing of Competitively Sensitive Information Dear [XX]: I provide you this notice regarding a judgment recently entered by a federal judge in Washington, D.C. prohibiting the sharing of certain information with other broadcast television station(s). The judgment applies to our company and all of its employees, including you, so it is important that you understand the obligations it imposes on us. [CEO Name] has asked me to let each of you know that [s/he] expects you to take these obligations seriously and abide by them. The judgment prohibits us from sharing or receiving, directly or indirectly (including through our national sales representative firm), competitively sensitive information with or from any employee, agent, or representative of another broadcast television station in the same DMA it does not own or operate. Competitively sensitive information means any non-public information regarding the sale of spot advertising on broadcast television stations, including information relating to any pricing or pricing strategies, pacing, holding capacity, revenues, or market shares. There are limited exceptions to this restriction, which are listed in the judgment. The company will provide briefing on the legitimate or illegitimate exchange of information. You must consult with me if you have any questions on whether a particular circumstance is subject to an exception under the judgment. A copy of the judgment is attached. Please read it carefully and familiarize yourself with its terms. The judgment, rather than the above description, is controlling. If you have any questions about the judgment or how it affects your sale of spot advertising, please contact me as soon as possible. Please sign and return the attached Employee Certification to [Defendant's Antitrust Compliance Officer] within thirty days of your receipt of this letter. Thank you for your cooperation. Sincerely, [Defendant's Antitrust Compliance Officer] Employee Certification I, __ [name], __ [position] at __ [station or location] do hereby certify that I (i) have read and understand, and agree to abide by, the terms of the Final Judgment; (ii) am not aware of any violation of the Final Judgment that has not been reported to [Defendant]; and (iii) understand that my failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court. ----------------------------------------------------------------------- Name: Date: Exhibit 2 United States District Court for the District of Columbia United States of America; Plaintiff, v. Sinclair Broadcast Group, Inc., et al., Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan ACKNOWLEDGEMENT OF APPLICABILITY The undersigned acknowledges that [Full Buyer Name], including its successors and assigns, and its subsidiaries, divisions, and broadcast television stations, and their directors, officers, and employees (``Acquirer''), following consummation of the Acquirer's acquisition of [insert names of station or stations acquired] (each, an ``Acquired Station''), is bound by the Final Judgment entered by this Court on [date] (``Final Judgment''), as if the Acquirer were a Defendant under the Final Judgment, as follows: 1. The Acquirer shall be bound in full by all Sections of the Consent Decree not specifically discussed below. 2. As to Sections IV, V, and VII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors only with respect to any responsibilities or actions regarding any Acquired Stations, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station, only with respect to those responsibilities. 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Final Judgment, the Acquirer is bound to the Final Judgment only as to (i) each Acquired Station, each Acquired Station's successors and assigns, and each Acquired Station's subsidiaries and divisions, and each Acquired Station's directors, officers, and employees, (ii) Acquirer's officers and directors, and (iii) employees with management or supervisory responsibilities for Acquirer's business or operations related to the sale of spot advertising on any Acquired Station. 4. The release contained in Sections VII(C) and (D) applies to the Acquirer, but only to civil actions or criminal charges arising from actions taken by any Acquired Station. 5. The Acquirer shall not be bound by Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all. 6. Section VI(A) applies to the Acquirer, but is modified to make the initial period for appointing an Antitrust Compliance Officer in the first sentence 120 days from consummation of the Acquirer's acquisition of the Acquired Station or Acquired Stations. This Acknowledgement of Applicability may be voided by a joint written agreement between the United States and the Acquirer. Dated: [ ] Respectfully submitted, /s/-------------------------------------------------------------------- [Counsel for Acquirer] United States District Court for the District of Columbia United States of America, Plaintiff, v. Sinclair Broadcast Group, Inc., Raycom Media, Inc., Tribune Media Company, Meredith Corporation, Griffin Communications, LLC, and Dreamcatcher Broadcasting, LLC, Defendants. Case No. 1:18-cv-2609 Judge: Tanya S. Chutkan COMPETITIVE IMPACT STATEMENT Plaintiff United States of America (``United States''), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16(b)-(h) (``APPA'' or ``Tunney Act''), files this Competitive Impact Statement relating to the proposed Final Judgments against Defendants Sinclair Broadcast Group, Inc. (``Sinclair''), Raycom Media, Inc. (``Raycom''), Tribune Media Company (``Tribune''), Meredith Corporation (``Meredith''), Griffin Communications, LLC (``Griffin''), and Dreamcatcher Broadcasting, LLC (``Dreamcatcher'') (collectively, ``Defendants''), submitted for entry in this civil antitrust proceeding. I. Nature and Purpose of the Proceeding On November 13, 2018, the United States filed a civil antitrust complaint alleging that Defendants agreed among themselves and other broadcast television stations in many local markets to reciprocally exchange station-specific, competitively sensitive information regarding spot advertising revenues. The Complaint alleges Defendants' agreements are unreasonable restraints of trade that are unlawful under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The Complaint seeks injunctive relief to prevent Defendants from exchanging competitively sensitive information with and among competing broadcast television stations. Along with the Complaint, the United States filed proposed Final Judgments for each of the Defendants. The proposed Final [[Page 62992]] Judgments are substantively the same for all Defendants. The proposed Final Judgments prohibit sharing of competitively sensitive information, require Defendants to implement antitrust compliance training programs, and impose cooperation and reporting requirements. The United States and Defendants have stipulated that the proposed Final Judgments may be entered after compliance with the APPA, unless the United States withdraws its consent. Entry of the proposed Final Judgments would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgments and to punish violations thereof. II. Description of the Events Giving Rise to the Alleged Violation A. Industry Background Broadcast television stations sell advertising time to businesses that want to advertise their products to television viewers. Broadcast television ``spot'' advertising,\1\ which typically comprises the majority of a station's revenues, is sold directly by the station itself or through its sales representatives to advertisers who want to target viewers in specific geographic areas called Designated Market Areas (``DMAs'').\2\ --------------------------------------------------------------------------- \1\ Spot advertising differs from other types of television advertising, such as network and syndicated television advertising, which are sold by television networks and producers of syndicated programs on a nationwide basis and broadcast in every market where the network or syndicated program is aired. \2\ A DMA is a geographical unit designated by the A.C. Nielsen Company, a company that surveys television viewers and furnishes data to aid in evaluating television audiences. There are 210 DMAs in the United States. DMAs are widely accepted by television stations, advertisers, and advertising agencies as the standard geographic area to use in evaluating television audience size and demographic composition. --------------------------------------------------------------------------- Broadcast stations typically make their spot advertising sales through two channels: (1) local sales, which are sales made by the station's own local sales staff to advertisers who are usually located within the DMA; and (2) national sales, which are sales made either by the broadcast group's national sales staff or by a national sales representative firm (``Sales Rep Firm'') to regional or national advertisers. Defendants own or operate multiple broadcast television stations, as set forth in the following table: ------------------------------------------------------------------------ Defendant Stations DMAs ------------------------------------------------------------------------ Sinclair.......................................... 130 87 Raycom............................................ 55 43 Tribune........................................... 41 31 Meredith.......................................... 17 12 Griffin........................................... 4 2 Dreamcatcher...................................... 3 2 ------------------------------------------------------------------------ Defendants, along with certain other television broadcast station groups, compete in various configurations in multiple DMAs across the United States. Each Defendant sells spot advertising time to advertisers that seek to target viewers in the DMAs in which Defendants operate. Prices are individually negotiated with advertisers, and advertisers are able to ``play off'' the stations against each other to obtain competitive rates. There are two primary Sales Rep Firms in the United States today, and each represents hundreds of television stations throughout the country in the sale of national advertising time. It is common for one Sales Rep Firm to represent multiple competing stations in the same DMA. In such cases, the stations and the Sales Rep Firms purportedly create firewalls to prevent coordination and information sharing between the sales teams representing competing stations. B. The Exchanges of Competitively Sensitive Information The Complaint alleges that Defendants and other broadcasters have agreed in many DMAs to reciprocally exchange station-specific revenue pacing data. Revenue pacing data compares a station's revenues booked for a certain time period to the revenues booked for the same point in time in the previous year, indicating how each station is performing versus the rest of the market and providing insight into each station's remaining spot advertising inventory for the current period or future periods. The exchanges were systematic and typically included non-public pacing data on national revenues, local revenues, or both, depending on the DMA. The Complaint further alleges that certain Defendants engaged in the exchange of other forms of competitively sensitive information relating to spot advertising in certain DMAs. The Complaint alleges that the Defendants exchanged pacing information in at least two ways. First, Defendants and other television broadcast stations exchanged information through the Sales Rep Firms. The information was passed both within and between Sales Rep Firms representing competing stations, and was done with Defendants' knowledge and frequently at Defendants' instruction. Second, in some DMAs, Defendants and other broadcasters exchanged pacing information directly between local station employees. The Complaint alleges that these exchanges of pacing information allowed stations to better understand, in real time, the availability of inventory on competitors' stations, which is often a key factor affecting negotiations with buyers over spot advertising prices. The exchanges also helped stations to anticipate whether competitors were likely to raise, maintain, or lower spot advertising prices. Understanding competitors' pacing can help stations gauge competitors' and advertisers' negotiation strategies, inform their own pricing strategies, and help them resist more effectively advertisers' attempts to obtain lower prices by playing stations off of one another. Defendants' information exchanges therefore distorted the normal price-setting mechanism in the spot advertising market and harmed the competitive process within the affected DMAs. III. Explanation of the Proposed Final Judgments The provisions of the proposed Final Judgments closely track the relief sought in the Complaint and are intended to provide prompt, certain, and effective remedies that will ensure that Defendants and their employees and sales representatives will not impede competition by sharing competitively sensitive information, directly or indirectly, including through Sales Rep Firms, with their rival broadcast television stations. The requirements and prohibitions in the proposed Final Judgments will terminate Defendants' illegal conduct, prevent recurrence of the same or similar conduct, ensure that Defendants establish an antitrust compliance program, and provide the United States with cooperation in its ongoing investigation. The proposed Final Judgments protect competition and consumers by putting a stop to the anticompetitive information sharing alleged in the Complaint. A. Prohibited Conduct The proposed Final Judgments broadly prohibit Defendants from sharing competitively sensitive information with rival broadcast television stations in the same DMA.\3\ Specifically, Section IV ensures that Defendants will not, directly or indirectly, communicate competitively sensitive information, including pricing or pricing strategies, pacing, holding capacity, revenues, or market shares, to broadcast television stations in the same DMA or to those stations' sales representatives and agents. --------------------------------------------------------------------------- \3\ As the proposed Final Judgments for each of the Defendants are substantively identical, references to sections throughout this Competitive Impact Statement refer to the same section in each Final Judgment. The only exception is Section III of the proposed Final Judgment for Defendant Raycom, which has a provision that, in light of the proposed acquisition of Raycom by Gray Television, Inc. (``Gray''), clarifies that the proposed Final Judgment does not apply to stations Gray owned that were not owned by Raycom as of October 1, 2018. --------------------------------------------------------------------------- The proposed Final Judgment provides that its provisions will apply to stations owned by the settling Defendants even if Defendants sell those stations to new buyers. In particular, Paragraph IV(C) provides that Defendants may not sell any stations they own as of October 1, 2018, unless the buyer has executed an Acknowledgement that each station will continue to be bound by the terms of the proposed Final Judgment. The United States, in its discretion, may waive this requirement on a station-by-station basis, or alternatively the buyer and the United States may agree to void the Acknowledgement after the sale has been consummated. B. Conduct Not Prohibited Section V makes clear that the proposed Final Judgments do not prohibit Defendants from sharing or receiving competitively sensitive information in certain specified circumstances where the information sharing appears unlikely to cause harm to competition. Paragraph V(A) allows Defendants to communicate competitively sensitive information to advertising customers or prospective customers. Paragraph V(B) allows for the communication of competitively sensitive information with other broadcasters (i) for purposes of evaluating or effectuating a transaction, such [[Page 62993]] as the purchase or sale of a station; or (ii) when reasonably necessary for achieving the efficiencies of a legitimate collaboration among competitors, such as a lawful joint venture.\4\ Paragraph V(C) confirms that the proposed Final Judgments do not prohibit petitioning conduct protected by the Noerr-Pennington doctrine. Paragraph V(D) permits the exchange of competitively sensitive information through certain third-party aggregation services under the conditions listed in that paragraph, including that the aggregated data does not permit individual stations to identify, deduce, or estimate the prices or pacing of their competitors. --------------------------------------------------------------------------- \4\ Paragraph V(B)(5) states that, for purposes of Paragraph V(B) only, certain types of Joint Sales Agreements, Local Marketing Agreements, and similar agreements qualify as a ``legitimate competitor collaboration'' under Paragraph V(B)(b). Paragraph V(B)(5) was included in recognition of the fact that some broadcasters have entered into a number of these agreements in various DMAs. The question of whether these agreements have any effect on competition was outside the scope of the United States' investigation in this matter. Accordingly, Paragraph V(B)(5) should not be read as an admission that such agreements otherwise comply with the antitrust laws, and the United States takes no position on that question for purposes of this proceeding. --------------------------------------------------------------------------- C. Antitrust Compliance Obligations Under Section VI of the proposed Final Judgments, each of the Defendants must designate an Antitrust Compliance Officer who is responsible for implementing training and antitrust compliance programs and ensuring compliance with the Final Judgment. Among other duties, the Antitrust Compliance Officer will be required to distribute copies of the Final Judgment and ensure that training on the Final Judgment and the antitrust laws is provided to Defendants' management and sales staff. Section VI also requires Defendants to establish an antitrust whistleblower policy and remedy and report violations of the Final Judgment. Under Paragraph VI(D)(4), each Defendant, through its CEO, General Counsel, or Chief Legal Officer, must certify annual compliance with the Final Judgment. This compliance program is necessary in light of the extensive history of communications among rival stations that facilitated Defendants' agreements. D. Defendants' Cooperation As outlined in Section VII, Defendants must cooperate fully and truthfully with the United States in any investigation or litigation relating to the sharing of competitively sensitive information in the broadcast television industry. The required cooperation may include providing sworn testimony, employee interviews, and/or documents and data. Paragraph VII(C) provides that, subject to each Defendant's truthful and continuing cooperation as defined in Paragraphs VII(A) and (B), the United States will not bring further civil actions or criminal charges against that Defendant for any agreement to share competitively sensitive information with any other station or Sales Rep Firm when the agreement: (1) was entered into and terminated before the date of the filing of the Complaint and (2) does not constitute or include an agreement to fix prices or divide markets. E. Enforcement of Final Judgment The proposed Final Judgments contain provisions designed to promote compliance and make the enforcement of Division consent decrees as effective as possible. Paragraph X(A) provides that the United States retains and reserves all rights to enforce the provisions of the proposed Final Judgment, including its rights to seek an order of contempt from the Court. Defendants have agreed that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of the Final Judgments, the United States may establish the violation and the appropriateness of any remedy by a preponderance of the evidence and that the Defendants have waived any argument that a different standard of proof should apply. This provision aligns the standard for compliance obligations with the standard of proof that applies to the underlying offense that the compliance commitments address. Paragraph X(B) provides additional clarification regarding the interpretation of the provisions of the proposed Final Judgments. The proposed Final Judgments were drafted to restore all competition the United States alleged was harmed by Defendants' challenged conduct. The Defendants agree that they will abide by the proposed Final Judgments, and that they may be held in contempt of this Court for failing to comply with any provision of the proposed Final Judgments that is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face, and as interpreted in light of this procompetitive purpose. Paragraph X(C) further provides that, should the Court find in an enforcement proceeding that a Defendant has violated the Final Judgment, the United States may apply to the Court for a one-time extension of the Final Judgment, together with such other relief as may be appropriate. In addition, in order to compensate American taxpayers for any costs associated with the investigation and enforcement of violations of a proposed Final Judgment, Paragraph X(C) provides that in any successful effort by the United States to enforce a Final Judgment against a Defendant, whether litigated or resolved before litigation, Defendant agrees to reimburse the United States for any attorneys' fees, experts' fees, or costs incurred in connection with any enforcement effort, including the investigation of the potential violation. Finally, Section XI of the proposed Final Judgments provides that each Final Judgment shall expire seven years from the date of its entry, except that after five years from the date of its entry, the Final Judgments may be terminated upon notice by the United States to the Court and the Defendants that the continuation of the Final Judgments is no longer necessary or in the public interest. 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 Judgments 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 Judgments have no prima facie effect in any subsequent private lawsuit that may be brought against Defendants. V. Procedures Available for Modification of the Proposed Final Judgments The United States and Defendants have stipulated that the Court may enter the proposed Final Judgments 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 Judgments are in the public interest. The APPA provides a period of at least sixty days preceding the effective date of the proposed Final Judgments within which any person may submit to the United States written comments regarding the proposed Final Judgments. Any person who wishes to comment should do so within sixty 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 Judgments at any time before 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 U.S. Department of Justice, Antitrust Division's website and, under certain circumstances, published in the Federal Register. Written comments should be submitted to: Owen M. Kendler, Chief, Media, Entertainment, & Professional Services Section, Antitrust Division, United States Department of Justice, 450 5th Street, N.W., Suite 4000, Washington, DC 20530. Under Section IX, the proposed Final Judgments provide that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgments. VI. Alternatives to the Proposed Final Judgment The United States considered, as an alternative to the proposed Final Judgments, seeking injunctive relief against Defendants' conduct through a full trial on the merits. The United States is satisfied, however, that the relief sought in the proposed Final Judgments will terminate the anticompetitive conduct alleged in the Complaint and more quickly restore the benefits of competition to advertisers. Thus, the proposed Final Judgments would achieve the relief the United States might have obtained through [[Page 62994]] litigation, but avoids the time, expense, and uncertainty of a full trial on the merits. VII. Standard of Review Under the APPA for the Proposed Final Judgments 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 60-day comment period, after which the court shall determine whether entry of the proposed Final Judgment ``is in the public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that determination, the court, 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., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the ``court's inquiry is limited'' in Tunney Act settlements); United States v. InBev N.V./S.A., No. 08-1965 (JR), 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''). 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 in the government's complaint, whether the decree is sufficiently clear, whether its 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. Instead: [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).\5\ --------------------------------------------------------------------------- \5\ See also 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''). 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 74-75 (noting that a court should not reject the proposed remedies because it believes others are preferable and that room must be made for the government to grant concessions in the negotiation process for settlements); 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 government's prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case''). 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 (quoting United States v. Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990)). 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, 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 (``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 a court in this district 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,\6\ 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, 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 language explicitly wrote into the statute what Congress intended when it first 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. See also 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''); S. Rep. No. 93-298 93d Cong., 1st Sess., at 6 (1973) (``Where the public interest [[Page 62995]] can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.''). --------------------------------------------------------------------------- \6\ The 2004 amendments substituted ``shall'' for ``may'' in directing relevant factors for a 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). --------------------------------------------------------------------------- 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 Judgments. Dated: November 13, 2018 Respectfully submitted, ----------------------------------------------------------------------- Lee F. Berger * (D.C. Bar #482435) Trial Attorney, U.S. Department of Justice, Antitrust Division, Media, Entertainment, and Professional Services Section, 450 Fifth Street, N.W., Suite 4000, Washington, DC 20530, Phone: 202-598-2698, Facsimile: 202-514-7308, Email: [email protected] *Attorney of Record [FR Doc. 2018-26201 Filed 12-4-18; 8:45 am] BILLING CODE 4410-11-P
![Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices 62965
An advertiser purchases spots from a competitively sensitive information, b. permanently enjoin and restrain
broadcast station to communicate its message including real-time pacing information for Defendants from sharing pacing or other
to viewers within the DMA in which the booked sales for current and future months, competitively sensitive information or
broadcast television station is located. directly between broadcast station agreeing to share such information with any
14. Broadcast stations typically divide their employees. These exchanges predominantly other broadcast station or broadcast station
sale of spot advertising into two categories: concerned local sales, but sometimes group, directly or indirectly, and requiring
local sales and national sales. Local sales are pertained to all sales or national sales. Defendants to take such internal measures as
sales a broadcast station makes through its 20. These exchanges of pacing information are necessary to ensure compliance with that
own local sales staff, typically to advertisers allowed stations to better understand, in real injunction;
located within the DMA. National sales are time, the availability of inventory on c. award the United States the costs of this
sales a broadcast station makes through competitors’ stations, which is often a key action; and
either a Sales Rep Firm or through a centrally factor affecting negotiations with buyers over d. award such other relief to the United
located broadcast group staff, typically to spot advertising prices. The exchanges also States as the Court may deem just and
regional or national advertisers. helped stations to anticipate whether proper.
15. Sales Rep Firms represent broadcast competitors were likely to raise, maintain, or Dated: November 13, 2018
stations in negotiations with advertisers’ or lower spot advertising prices. Understanding
competitors’ pacing can help stations gauge Respectfully submitted,
advertisers’ agents regarding the sale of
broadcast stations’ spot advertising. There are competitors’ and advertisers’ negotiation FOR PLAINTIFF UNITED STATES OF
two primary Sales Rep Firms in the United strategies, inform their own pricing AMERICA,
States. Often a Sales Rep Firm represents two strategies, and help them resist more lllllllllllllllllllll
or more competing stations in the same effectively advertisers’ attempts to obtain Makan Delrahim (D.C. Bar #457795),
DMA. In those cases, the Sales Rep Firms lower prices by playing stations off of one
another. Defendants’ information exchanges Assistant Attorney General for Antitrust.
purportedly erect firewalls to prevent lllllllllllllllllllll
coordination and information sharing therefore distorted the normal price-setting
between sales teams representing competing mechanism in the spot advertising market William J. Rinner,
stations. and harmed the competitive process. Acting Chief of Staff and Senior Counsel.
21. Defendants’ and Other Broadcasters’
lllllllllllllllllllll
V. THE UNLAWFUL AGREEMENTS regular information exchanges, directly and
through the Sales Rep Firms, reflect Patricia A. Brink,
16. Defendants and Other Broadcasters
concerted action between horizontal Director of Civil Enforcement.
have agreed in many DMAs across the United
States to reciprocally exchange revenue competitors in the broadcast television spot lllllllllllllllllllll
advertising market. Owen M. Kendler,
pacing information. Certain Defendants also
engaged in the exchange of other forms of VI. VIOLATION ALLEGED Chief, Media, Entertainment & Professional
competitively sensitive sales information in Services Section.
certain DMAs. Pacing compares a broadcast (Violation of Section 1 of the Sherman Act)
lllllllllllllllllllll
station’s revenues booked for a certain time 22. The United States repeats and realleges
paragraphs 1 through 21 as if fully set forth Yvette Tarlov (D.C. Bar #442452),
period to the revenues booked for the same
point in time in the previous year. Pacing herein. Assistant Chief, Media, Entertainment &
indicates how each station is performing 23. Defendants violated Section 1 of the Professional Services Section.
versus the rest of the market and provides Sherman Act, 15 U.S.C. § 1, by agreeing to lllllllllllllllllllll
insight into each station’s remaining spot exchange competitively sensitive Lee F. Berger (D.C. Bar #482435),
advertising inventory for the period. information, either directly or through Sales Richard A. Hellings, Jr.,
17. Defendants’ exchange of competitively Rep Firms. Defendants’ exchange of pacing Gregg Malawer (D.C. Bar #481685),
sensitive information has taken at least two information resulted in anticompetitive Bennett J. Matelson (D.C. Bar #454551),
forms. effects in the broadcast television spot Monsura A. Sirajee,
18. First, Defendants and Other advertising markets in many DMAs
throughout the United States. United States Department of Justice Antitrust
Broadcasters regularly exchanged pacing Division, Media, Entertainment &
information through the Sales Rep Firms. At 24. The scheme consists of exchanges
between Defendants and Other Broadcasters, Professional Services Section, 450 Fifth
least once per quarter, but frequently more Street, N.W., Suite 4000, Washington, DC
often, the Sales Rep Firms representing the either directly or through the Sales Rep
Firms, in many DMAs, of their stations’ 20530, Telephone: (202) 514–0230,
Big 4 stations in a DMA exchanged real-time Facsimile: (202) 514–7308.
pacing information regarding each station’s revenue pacing information or, for certain
Defendants in certain DMAs, other United States District Court for the District
revenues, and reported the information to the
competitively sensitive information of Columbia
Defendants and the other Big 4 station
concerning spot advertising sales.
owners in the DMA. Typically, the exchanges United States of America; Plaintiff, v.
25. These unlawful information sharing
included data on individual stations’ booked Sinclair Broadcast Group, Inc., et al.
agreements between Defendants, Other
sales for current and future months as well Broadcasters, and Sales Rep Firms have had, Defendants.
as a comparison to past periods. To the and likely will continue to have, Case No. 1:18–cv–2609
extent a Sales Rep Firm represents more than anticompetitive effects in spot advertising Judge: Tanya S. Chutkan
one Big 4 station in a DMA through sales markets by disrupting the normal
teams separated by a supposed firewall, the [PROPOSED] FINAL JUDGMENT
mechanisms for negotiating and setting
exchange of pacing and other competitively prices and harming the competitive process. WHEREAS, Plaintiff, United States of
sensitive information occurred between the 26. Defendants’ agreements to exchange America, filed its Complaint on November l
sales teams and through those firewalls. Once competitively sensitive information are l, 2018, alleging that Defendant Sinclair
given to the Defendants and Other unreasonable restraints of interstate trade and Broadcast Group, Inc., among others, violated
Broadcasters in the DMA, the competitors’ commerce. This offense is likely to continue Section 1 of the Sherman Act, 15 U.S.C. § 1,
pacing information was then disseminated to and recur unless the requested relief is the United States and Defendant, by their
khammond on DSK30JT082PROD with NOTICES2
the stations’ sales managers and other granted. respective attorneys, have consented to the
individuals with authority over pricing and entry of this Final Judgment without trial or
sales for the broadcast stations. These VII. REQUESTED RELIEF adjudication of any issue of fact or law;
exchanges occurred with Defendants’ 27. The United States requests that the AND WHEREAS, this Final Judgment does
knowledge and frequently at Defendants’ Court: not constitute any evidence against or
instruction, and occurred in DMAs across the a. adjudge that the information sharing admission by any party regarding any issue
United States. agreements unreasonably restrain trade and of fact or law;
19. Second, in some DMAs, Defendants are unlawful under Section 1 of the Sherman AND WHEREAS, the United States and
and Other Broadcasters exchanged Act, 15 U.S.C. § 1; Defendant agree to be bound by the
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![Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices 62969
party (including grand jury proceedings), or XI. EXPIRATION OF FINAL JUDGMENT television stations, including information
for the purpose of securing compliance with Unless this Court grants an extension, this relating to any pricing or pricing strategies,
this Final Judgment, or for law enforcement Final Judgment shall expire seven years from pacing, holding capacity, revenues, or market
purposes, or as otherwise required by law. the date of its entry, except that after five shares. There are limited exceptions to this
C. If at the time information or documents years from the date of its entry, this Final restriction, which are listed in the judgment.
are furnished by Defendant to the United Judgment may be terminated upon notice by The company will provide briefing on the
States, Defendant represents and identifies in the United States to the Court and Defendant legitimate or illegitimate exchange of
writing the material in any such information that the continuation of the Final Judgment information. You must consult with me if
or documents to which a claim of protection no longer is necessary or in the public you have any questions on whether a
may be asserted under Rule 26(c)(1)(G) of the interest. particular circumstance is subject to an
Federal Rules of Civil Procedure, and exception under the judgment.
Defendant marks each pertinent page of such XII. NOTICE A copy of the judgment is attached. Please
material, ‘‘Subject to claim of protection For purposes of this Final Judgment, any read it carefully and familiarize yourself with
under Rule 26(c)(1)(G) of the Federal Rules notice or other communication required to be its terms. The judgment, rather than the
of Civil Procedure,’’ then the United States provided to the United States shall be sent above description, is controlling. If you have
shall give Defendant ten calendar days’ to the person at the address set forth below any questions about the judgment or how it
notice prior to divulging such material in any (or such other addresses as the United States affects your sale of spot advertising, please
legal proceeding (other than a grand jury may specify in writing to Defendant): Chief, contact me as soon as possible.
proceeding). Media, Entertainment, and Professional Please sign and return the attached
IX. RETENTION OF JURISDICTION Services Section, U.S. Department of Justice, Employee Certification to [Defendant’s
Antitrust Division, 450 Fifth Street, NW, Antitrust Compliance Officer] within thirty
This Court retains jurisdiction to enable days of your receipt of this letter. Thank you
Suite 4000, Washington, D.C. 20530.
any party to this Final Judgment to apply to for your cooperation.
this Court at any time for further orders and XIII. PUBLIC INTEREST DETERMINATION Sincerely,
directions as may be necessary or appropriate Entry of this Final Judgment is in the
to carry out or construe this Final Judgment, [Defendant’s Antitrust Compliance Officer]
public interest. The parties have complied
to modify any of its provisions, to enforce with the requirements of the Antitrust Employee Certification
compliance, and to punish violations of its Procedures and Penalties Act, 15 U.S.C. § 16,
provisions. I, lll [name], lll [position] at lll
including making copies available to the [station or location] do hereby certify that I
X. ENFORCEMENT OF FINAL JUDGMENT public of this Final Judgment, the (i) have read and understand, and agree to
Competitive Impact Statement, and any abide by, the terms of the Final Judgment; (ii)
A. The United States retains and reserves
comments thereon and the United States’ am not aware of any violation of the Final
all rights to enforce the provisions of this
responses to comments. Based upon the Judgment that has not been reported to
Final Judgment, including its right to seek an
record before the Court, which includes the [Defendant]; and (iii) understand that my
order of contempt from this Court. Defendant
Competitive Impact Statement and any failure to comply with this Final Judgment
agrees that in any civil contempt action, any
comments and response to comments filed may result in an enforcement action for civil
motion to show cause, or any similar civil
with the Court, entry of this Final Judgment or criminal contempt of court.
action brought by the United States regarding
is in the public interest. lllllllllllllllllllll
an alleged violation of this Final Judgment,
the United States may establish a violation of IT IS SO ORDERED by the Court, this l Name:
the decree and the appropriateness of any l day of ll, 201ll. Date:
remedy therefor by a preponderance of the Court approval subject to procedures of
evidence, and Defendant waives any Antitrust Procedures and Penalties Act, 15 EXHIBIT 2
argument that a different standard of proof U.S.C. § 16
United States District Court for the District
should apply. lllllllllllllllllllll of Columbia
B. The Final Judgment should be United States District Judge
interpreted to give full effect to the United States of America; Plaintiff, v.
procompetitive purposes of the antitrust laws Exhibit 1 Sinclair Broadcast Group, Inc., et al.
and to restore all competition the United Defendants.
[Company Letterhead]
States alleged was harmed by the challenged Case No. 1:18–cv–2609
[Name and Address of Antitrust Compliance
conduct. Defendant agrees that it may be held Judge: Tanya S. Chutkan
Officer]
in contempt of, and that the Court may Re: Prohibitions Against Sharing of ACKNOWLEDGEMENT OF APPLICABILITY
enforce, any provision of this Final Judgment Competitively Sensitive Information
that, as interpreted by the Court in light of The undersigned acknowledges that [Full
Dear [XX]: Buyer Name], including its successors and
these procompetitive principles and applying
ordinary tools of interpretation, is stated I provide you this notice regarding a assigns, and its subsidiaries, divisions, and
specifically and in reasonable detail, whether judgment recently entered by a federal judge broadcast television stations, and their
or not it is clear and unambiguous on its face. in Washington, D.C. prohibiting the sharing directors, officers, and employees
In any such interpretation, the terms of this of certain information with other broadcast (‘‘Acquirer’’), following consummation of the
Final Judgment should not be construed television station(s). Acquirer’s acquisition of [insert names of
against either party as the drafter. The judgment applies to our company and station or stations acquired] (each, an
C. In any enforcement proceeding in which all of its employees, including you, so it is ‘‘Acquired Station’’), is bound by the Final
the Court finds that Defendant has violated important that you understand the Judgment entered by this Court on [date]
this Final Judgment, the United States may obligations it imposes on us. [CEO Name] has (‘‘Final Judgment’’), as if the Acquirer were
apply to the Court for a one-time extension asked me to let each of you know that [s/he] a Defendant under the Final Judgment, as
of this Final Judgment, together with such expects you to take these obligations follows:
other relief as may be appropriate. In seriously and abide by them. 1. The Acquirer shall be bound in full by
connection with any successful effort by the The judgment prohibits us from sharing or all Sections of the Consent Decree not
khammond on DSK30JT082PROD with NOTICES2
United States to enforce this Final Judgment receiving, directly or indirectly (including specifically discussed below.
against Defendant, whether litigated or through our national sales representative 2. As to Sections IV, V, and VII of the Final
resolved prior to litigation, Defendant agrees firm), competitively sensitive information Judgment, the Acquirer is bound to the Final
to reimburse the United States for the fees with or from any employee, agent, or Judgment only as to (i) each Acquired
and expenses of its attorneys, as well as any representative of another broadcast television Station, each Acquired Station’s successors
other costs including experts’ fees, incurred station in the same DMA it does not own or and assigns, and each Acquired Station’s
in connection with that enforcement effort, operate. Competitively sensitive information subsidiaries and divisions, and each
including in the investigation of the potential means any non-public information regarding Acquired Station’s directors, officers, and
violation. the sale of spot advertising on broadcast employees, (ii) Acquirer’s officers and
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![62970 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices
directors only with respect to any issue of fact or law, and upon consent of the future holding capacity is Non-Public
responsibilities or actions regarding any parties, it is ORDERED, ADJUDGED, AND Information, but measurement or
Acquired Stations, and (iii) employees with DECREED: quantification of a Station’s past holding
management or supervisory responsibilities capacity is not Non-Public Information. For
for Acquirer’s business or operations related I. JURISDICTION
the avoidance of doubt, the fact that
to the sale of spot advertising on any This Court has jurisdiction over the subject information is available by paid subscription
Acquired Station, only with respect to those matter and each of the parties to this action. does not on its own render the information
responsibilities. The allegations in the Complaint arise under public.
3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), Section 1 of the Sherman Act, as amended, J. ‘‘Person’’ means any natural person,
VI(C)(8), VI(D), VI(E), and VIII of the Final 15 U.S.C. § 1. See 28 U.S.C. § 1331. corporation, company, partnership, joint
Judgment, the Acquirer is bound to the Final venture, firm, association, proprietorship,
Judgment only as to (i) each Acquired II. DEFINITIONS
agency, board, authority, commission, office,
Station, each Acquired Station’s successors As used in this Final Judgment: or other business or legal entity, whether
and assigns, and each Acquired Station’s A. ‘‘Advertiser’’ means an advertiser, an private or governmental.
subsidiaries and divisions, and each advertiser’s buying agent, or an advertiser’s K. ‘‘Sales Representative Firm’’ means any
Acquired Station’s directors, officers, and representative. organization, including without limitation
employees, (ii) Acquirer’s officers and B. ‘‘Agreement’’ means any agreement, Katz Media Group, Inc. and Cox Reps, Inc.,
directors, and (iii) employees with understanding, pact, contract, or and their respective subsidiaries and
management or supervisory responsibilities arrangement, formal or informal, oral or divisions, that represents a Station or its
for Acquirer’s business or operations related written, between two or more Persons. owner in the sale of spot advertising.
to the sale of spot advertising on any C. ‘‘Communicate,’’ ‘‘Communicating,’’ and L. ‘‘Sales Representative Firm Manager’’
Acquired Station. ‘‘Communication(s)’’ means to provide, send, means, for each of Defendant’s Sales
4. The release contained in Sections VII(C) discuss, circulate, exchange, request, or Representative Firms, the employee of the
and (D) applies to the Acquirer, but only to solicit information, whether directly or Sales Representative Firm with primary
civil actions or criminal charges arising from indirectly, and regardless of the means by responsibility for the relationship with
actions taken by any Acquired Station. which it is accomplished, including orally or Defendant.
5. The Acquirer shall not be bound by by written means of any kind, such as M. ‘‘Sales Staff’’ means Defendant’s
Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), electronic communications, e-mails, employees with responsibility for the sale of
and VI(F) of the Final Judgment at all. facsimiles, telephone communications, spot advertising on any Station.
6. Section VI(A) applies to the Acquirer, voicemails, text messages, audio recordings, N. ‘‘Station’’ means any broadcast
but is modified to make the initial period for meetings, interviews, correspondence, television station, its successors and assigns,
appointing an Antitrust Compliance Officer exchange of written or recorded information, and its subsidiaries, divisions, groups, and its
in the first sentence 120 days from or face-to-face meetings. owner or operator and its directors, officers,
consummation of the Acquirer’s acquisition D. ‘‘Competitively Sensitive Information’’ managers, and employees, unless a Station
of the Acquired Station or Acquired Stations. means any of the following information, less owns, is owned by, or is under common
This Acknowledgement of Applicability than eighteen months old, of Defendant or ownership with a Sales Representative Firm,
may be voided by a joint written agreement any broadcast television station regarding the in which case that Sales Representative Firm
between the United States and the Acquirer. sale of spot advertising on broadcast will not be considered a Station.
Dated: [ ] television stations: Non-Public Information
relating to pricing or pricing strategies, III. APPLICABILITY
Respectfully submitted,
pacing, holding capacity, revenues, or market This Final Judgment applies to Defendant,
/s/ lllllllllllllllllll shares. Reports containing only aggregated other Persons in active concert or
[Counsel for Acquirer] market-level or national data are not participation with Defendant who receive
Competitively Sensitive Information, but actual notice of this Final Judgment by
United States District Court for the District
reports (including by paid subscription) that personal service or otherwise, and any
of Columbia
are customized or confidential to a particular Person that signs an Acknowledgment of
United States of America; Plaintiff, v. Station or broadcast television station group Applicability, attached as Exhibit 2, to the
Sinclair Broadcast Group, Inc., et al. are Competitively Sensitive Information. extent set forth therein, as a condition of the
Defendants. E. ‘‘Cooperative Agreement’’ means (1) purchase of a Station owned by Defendant as
Case No. 1:18–cv–2609 joint sales agreements, joint operating of October 1, 2018. This Final Judgment
Judge: Tanya S. Chutkan agreements, local marketing agreements, applies to Defendant’s actions performed
news share agreements, or shared services under any Cooperative Agreement, even if
[PROPOSED] FINAL JUDGMENT agreements, or (2) any agreement through those actions are taken on behalf of a third
WHEREAS, Plaintiff, United States of which a Person exercises control over any party. This Final Judgment is fully
America, filed its Complaint on November _ broadcast television station not owned by the enforceable, including by penalty of
_, 2018, alleging that Defendant Raycom Person. contempt, against all of the foregoing.
Media, Inc., among others, violated Section 1 F. ‘‘Defendant’’ means Raycom Media, Inc., Notwithstanding any other provision
of the Sherman Act, 15 U.S.C. § 1, the United a Delaware corporation with its headquarters contained herein, this Final Judgment does
States and Defendant, by their respective in Birmingham, Alabama, its successors and not apply to broadcast television stations
attorneys, have consented to the entry of this assigns, and its subsidiaries, divisions, and owned by Gray Television, Inc. that were not
Final Judgment without trial or adjudication Stations, and their directors, officers, and owned by Raycom Media, Inc. as of October
of any issue of fact or law; employees. 1, 2018.
AND WHEREAS, this Final Judgment does G. ‘‘DMA’’ means Designated Market Area
not constitute any evidence against or as defined by A.C. Nielsen Company and IV. PROHIBITED CONDUCT
admission by any party regarding any issue used by the Investing in Television BIA A. Defendant’s Management and Sales Staff
of fact or law; Market Report 2018. shall not, directly or indirectly:
AND WHEREAS, the United States and H. ‘‘Management’’ means all directors and 1. Communicate Competitively Sensitive
khammond on DSK30JT082PROD with NOTICES2
Defendant agree to be bound by the officers of Defendant, or any other employee Information to any Station in the same DMA
provisions of this Final Judgment pending its with management or supervisory it does not own or operate;
approval by this Court; responsibilities for Defendant’s business or 2. Knowingly use Competitively Sensitive
AND WHEREAS, the Defendant agrees to operations related to the sale of spot Information from or regarding any Station in
undertake certain actions and to refrain from advertising on any Station. the same DMA it does not own or operate;
engaging in certain forms of information I. ‘‘Non-Public Information’’ means 3. Encourage or facilitate the
sharing with its competitors; information that is not available from public Communication of Competitively Sensitive
NOW THEREFORE, before any testimony sources or generally available to the public. Information to or from any Station in the
is taken, without trial or adjudication of any Measurement or quantification of a Station’s same DMA it does not own or operate; or
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![Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices 62973
related to any Communication of party (including grand jury proceedings), or XI. EXPIRATION OF FINAL JUDGMENT
Competitively Sensitive Information or any for the purpose of securing compliance with Unless this Court grants an extension, this
agreement to Communicate Competitively this Final Judgment, or for law enforcement Final Judgment shall expire seven years from
Sensitive Information with any other Station purposes, or as otherwise required by law. the date of its entry, except that after five
it does not own or operate or such other C. If at the time information or documents years from the date of its entry, this Final
Station’s Sales Representative Firm when are furnished by Defendant to the United Judgment may be terminated upon notice by
that agreement: States, Defendant represents and identifies in the United States to the Court and Defendant
1. was Communicated, entered into and writing the material in any such information
that the continuation of the Final Judgment
terminated on or before the date of the filing or documents to which a claim of protection
no longer is necessary or in the public
of the Complaint in this action (or in the case may be asserted under Rule 26(c)(1)(G) of the
interest.
of a Station that is acquired by Defendant Federal Rules of Civil Procedure, and
after entry of this Final Judgment, was Defendant marks each pertinent page of such XII. NOTICE
Communicated or entered into before the material, ‘‘Subject to claim of protection
For purposes of this Final Judgment, any
acquisition and terminated within 120 days under Rule 26(c)(1)(G) of the Federal Rules
notice or other communication required to be
after the closing of the acquisition); and of Civil Procedure,’’ then the United States
provided to the United States shall be sent
2. does not constitute or include an shall give Defendant ten calendar days’
to the person at the address set forth below
agreement to fix prices or divide markets. notice prior to divulging such material in any
legal proceeding (other than a grand jury (or such other addresses as the United States
D. The United States’ agreement set forth may specify in writing to Defendant): Chief,
in Paragraph VII(C) does not apply to any proceeding).
Media, Entertainment, and Professional
acts of perjury or subornation of perjury (18 IX. RETENTION OF JURISDICTION Services Section, U.S. Department of Justice,
U.S.C. §§ 1621–22), making a false statement Antitrust Division, 450 Fifth Street NW, Suite
or declaration (18 U.S.C. §§ 1001, 1623), This Court retains jurisdiction to enable
any party to this Final Judgment to apply to 4000, Washington, D.C. 20530.
contempt (18 U.S.C. §§ 401–402), or
obstruction of justice (18 U.S.C. § 1503, et this Court at any time for further orders and XIII. PUBLIC INTEREST DETERMINATION
seq.) by the Defendant or its officers, directions as may be necessary or appropriate
to carry out or construe this Final Judgment, Entry of this Final Judgment is in the
directors, and employees. The United States’ public interest. The parties have complied
to modify any of its provisions, to enforce
agreement set forth in Paragraph VII(C) does with the requirements of the Antitrust
compliance, and to punish violations of its
not release any claims against any Sales Procedures and Penalties Act, 15 U.S.C. § 16,
provisions.
Representative Firm. including making copies available to the
X. ENFORCEMENT OF FINAL JUDGMENT public of this Final Judgment, the
VIII. COMPLIANCE INSPECTION
A. The United States retains and reserves Competitive Impact Statement, and any
A. For the purposes of determining or comments thereon and the United States’
all rights to enforce the provisions of this
securing compliance with this Final responses to comments. Based upon the
Final Judgment, including its right to seek an
Judgment or of any related orders, or of record before the Court, which includes the
order of contempt from this Court. Defendant
determining whether the Final Judgment Competitive Impact Statement and any
agrees that in any civil contempt action, any
should be modified, and subject to any motion to show cause, or any similar civil comments and response to comments filed
legally recognized privilege, from time to action brought by the United States regarding with the Court, entry of this Final Judgment
time authorized representatives of the United an alleged violation of this Final Judgment, is in the public interest.
States Department of Justice, including the United States may establish a violation of IT IS SO ORDERED by the Court, this l
consultants and other persons retained by the the decree and the appropriateness of any l day of ll, 201ll.
United States, shall, upon written request of remedy therefor by a preponderance of the Court approval subject to procedures of
an authorized representative of the Assistant evidence, and Defendant waives any Antitrust Procedures and Penalties Act, 15
Attorney General in charge of the Antitrust argument that a different standard of proof U.S.C. § 16
Division, and on reasonable notice to should apply.
Defendant, be permitted: B. The Final Judgment should be lllllllllllllllllllll
1. to access during Defendant’s office hours interpreted to give full effect to the United States District Judge
to inspect and copy, or at the option of the procompetitive purposes of the antitrust laws
United States, to require Defendant to Exhibit 1
and to restore all competition the United
provide electronic or hard copies of all States alleged was harmed by the challenged [Company Letterhead]
books, ledgers, accounts, records, data, and conduct. Defendant agrees that it may be held [Name and Address of Antitrust Compliance
documents in the possession, custody, or in contempt of, and that the Court may Officer]
control of Defendant, relating to any matters enforce, any provision of this Final Judgment Re: Prohibitions Against Sharing of
that are the subject of this Final Judgment, that, as interpreted by the Court in light of Competitively Sensitive Information
not protected by the attorney-client privilege these procompetitive principles and applying
or the attorney work product doctrine; and Dear [XX]:
ordinary tools of interpretation, is stated
2. to interview, either informally or on the specifically and in reasonable detail, whether I provide you this notice regarding a
record, Defendant’s officers, employees, or or not it is clear and unambiguous on its face. judgment recently entered by a federal judge
agents, who may have their individual In any such interpretation, the terms of this in Washington, D.C. prohibiting the sharing
counsel present, regarding such matters. The Final Judgment should not be construed of certain information with other broadcast
interviews shall be subject to the reasonable against either party as the drafter. television station(s).
convenience of the interviewee and without C. In any enforcement proceeding in which The judgment applies to our company and
restraint or interference by Defendant; and the Court finds that Defendant has violated all of its employees, including you, so it is
3. to obtain from Defendant written reports this Final Judgment, the United States may important that you understand the
or responses to written interrogatories, of apply to the Court for a one-time extension obligations it imposes on us. [CEO Name] has
information not protected by the attorney- of this Final Judgment, together with such asked me to let each of you know that [s/he]
client privilege or attorney work product other relief as may be appropriate. In expects you to take these obligations
doctrine, under oath if requested, relating to connection with any successful effort by the seriously and abide by them.
khammond on DSK30JT082PROD with NOTICES2
any matters that are the subject of this Final United States to enforce this Final Judgment The judgment prohibits us from sharing or
Judgment as may be requested. against Defendant, whether litigated or receiving, directly or indirectly (including
B. No information or documents obtained resolved prior to litigation, Defendant agrees through our national sales representative
by the means provided in this Section VIII to reimburse the United States for the fees firm), competitively sensitive information
shall be divulged by the United States to any and expenses of its attorneys, as well as any with or from any employee, agent, or
Person other than an authorized other costs including experts’ fees, incurred representative of another broadcast television
representative of the executive branch of the in connection with that enforcement effort, station in the same DMA it does not own or
United States, except in the course of legal including in the investigation of the potential operate. Competitively sensitive information
proceedings to which the United States is a violation. means any non-public information regarding
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the sale of spot advertising on broadcast Acquired Station’s directors, officers, and NOW THEREFORE, before any testimony
television stations, including information employees, (ii) Acquirer’s officers and is taken, without trial or adjudication of any
relating to any pricing or pricing strategies, directors only with respect to any issue of fact or law, and upon consent of the
pacing, holding capacity, revenues, or market responsibilities or actions regarding any parties, it is ORDERED, ADJUDGED, AND
shares. There are limited exceptions to this Acquired Stations, and (iii) employees with DECREED:
restriction, which are listed in the judgment. management or supervisory responsibilities
The company will provide briefing on the for Acquirer’s business or operations related I. JURISDICTION
legitimate or illegitimate exchange of to the sale of spot advertising on any This Court has jurisdiction over the subject
information. You must consult with me if Acquired Station, only with respect to those matter and each of the parties to this action.
you have any questions on whether a responsibilities. The allegations in the Complaint arise under
particular circumstance is subject to an 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), Section 1 of the Sherman Act, as amended,
exception under the judgment. VI(C)(8), VI(D), VI(E), and VIII of the Final 15 U.S.C. § 1. See 28 U.S.C. § 1331.
A copy of the judgment is attached. Please Judgment, the Acquirer is bound to the Final
read it carefully and familiarize yourself with Judgment only as to (i) each Acquired II. DEFINITIONS
its terms. The judgment, rather than the Station, each Acquired Station’s successors As used in this Final Judgment:
above description, is controlling. If you have and assigns, and each Acquired Station’s A. ‘‘Advertiser’’ means an advertiser, an
any questions about the judgment or how it subsidiaries and divisions, and each advertiser’s buying agent, or an advertiser’s
affects your sale of spot advertising, please Acquired Station’s directors, officers, and representative.
contact me as soon as possible. employees, (ii) Acquirer’s officers and B. ‘‘Agreement’’ means any agreement,
Please sign and return the attached directors, and (iii) employees with understanding, pact, contract, or
Employee Certification to [Defendant’s management or supervisory responsibilities arrangement, formal or informal, oral or
Antitrust Compliance Officer] within thirty for Acquirer’s business or operations related written, between two or more Persons.
days of your receipt of this letter. Thank you to the sale of spot advertising on any C. ‘‘Communicate,’’ ‘‘Communicating,’’ and
for your cooperation. Acquired Station. ‘‘Communication(s)’’ means to provide, send,
Sincerely, 4. The release contained in Sections VII(C) discuss, circulate, exchange, request, or
and (D) applies to the Acquirer, but only to solicit information, whether directly or
[Defendant’s Antitrust Compliance Officer]
civil actions or criminal charges arising from indirectly, and regardless of the means by
Employee Certification actions taken by any Acquired Station. which it is accomplished, including orally or
I, lll [name],lll [position] atlll 5. The Acquirer shall not be bound by by written means of any kind, such as
[station or location] do hereby certify that I Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), electronic communications, e-mails,
(i) have read and understand, and agree to and VI(F) of the Final Judgment at all. facsimiles, telephone communications,
abide by, the terms of the Final Judgment; (ii) 6. Section VI(A) applies to the Acquirer, voicemails, text messages, audio recordings,
am not aware of any violation of the Final but is modified to make the initial period for meetings, interviews, correspondence,
Judgment that has not been reported to appointing an Antitrust Compliance Officer exchange of written or recorded information,
[Defendant]; and (iii) understand that my in the first sentence 120 days from or face-to-face meetings.
failure to comply with this Final Judgment consummation of the Acquirer’s acquisition D. ‘‘Competitively Sensitive Information’’
may result in an enforcement action for civil of the Acquired Station or Acquired Stations. means any of the following information, less
or criminal contempt of court. This Acknowledgement of Applicability than eighteen months old, of Defendant or
lllllllllllllllllllll may be voided by a joint written agreement any broadcast television station regarding the
between the United States and the Acquirer. sale of spot advertising on broadcast
Name: television stations: Non-Public Information
Date: Dated: [ ]
relating to pricing or pricing strategies,
Respectfully submitted,
pacing, holding capacity, revenues, or market
Exhibit 2 /s/ lllllllllllllllllll shares. Reports containing only aggregated
United States District Court for the District [Counsel for Acquirer] market-level or national data are not
of Columbia Competitively Sensitive Information, but
United States District Court for the District
reports (including by paid subscription) that
United States of America; Plaintiff, v. of Columbia
are customized or confidential to a particular
SINCLAIR BROADCAST GROUP, INC., et al. United States of America; Plaintiff, v. Station or broadcast television station group
Defendants. Sinclair Broadcast Group, Inc., et al. are Competitively Sensitive Information.
Case No. 1:18–cv–2609 Defendants. E. ‘‘Cooperative Agreement’’ means (1)
Judge: Tanya S. Chutkan Case No. 1:18–cv–2609 joint sales agreements, joint operating
Judge: Tanya S. Chutkan agreements, local marketing agreements,
ACKNOWLEDGEMENT OF APPLICABILITY news share agreements, or shared services
The undersigned acknowledges that [Full [PROPOSED] FINAL JUDGMENT agreements, or (2) any agreement through
Buyer Name], including its successors and WHEREAS, Plaintiff, United States of which a Person exercises control over any
assigns, and its subsidiaries, divisions, and America, filed its Complaint on November broadcast television station not owned by the
broadcast television stations, and their ll, 2018, alleging that Defendant Tribune Person.
directors, officers, and employees Media Company, among others, violated F. ‘‘Defendant’’ means Tribune Media
(‘‘Acquirer’’), following consummation of the Section 1 of the Sherman Act, 15 U.S.C. § 1, Company, a Delaware corporation with its
Acquirer’s acquisition of [insert names of the United States and Defendant, by their headquarters in Chicago, Illinois, its
station or stations acquired] (each, an respective attorneys, have consented to the successors and assigns, and its subsidiaries,
‘‘Acquired Station’’), is bound by the Final entry of this Final Judgment without trial or divisions, and Stations, and their directors,
Judgment entered by this Court on [date] adjudication of any issue of fact or law; officers, and employees.
(‘‘Final Judgment’’), as if the Acquirer were AND WHEREAS, this Final Judgment does G. ‘‘DMA’’ means Designated Market Area
a Defendant under the Final Judgment, as not constitute any evidence against or as defined by A.C. Nielsen Company and
follows: admission by any party regarding any issue used by the Investing in Television BIA
khammond on DSK30JT082PROD with NOTICES2
1. The Acquirer shall be bound in full by of fact or law; Market Report 2018.
all Sections of the Consent Decree not AND WHEREAS, the United States and H. ‘‘Management’’ means all directors and
specifically discussed below. Defendant agree to be bound by the officers of Defendant, or any other employee
2. As to Sections IV, V, and VII of the Final provisions of this Final Judgment pending its with management or supervisory
Judgment, the Acquirer is bound to the Final approval by this Court; responsibilities for Defendant’s business or
Judgment only as to (i) each Acquired AND WHEREAS, the Defendant agrees to operations related to the sale of spot
Station, each Acquired Station’s successors undertake certain actions and to refrain from advertising on any Station.
and assigns, and each Acquired Station’s engaging in certain forms of information I. ‘‘Non-Public Information’’ means
subsidiaries and divisions, and each sharing with its competitors; information that is not available from public
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![62978 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices
the date of its entry, except that after five shares. There are limited exceptions to this management or supervisory responsibilities
years from the date of its entry, this Final restriction, which are listed in the judgment. for Acquirer’s business or operations related
Judgment may be terminated upon notice by The company will provide briefing on the to the sale of spot advertising on any
the United States to the Court and Defendant legitimate or illegitimate exchange of Acquired Station, only with respect to those
that the continuation of the Final Judgment information. You must consult with me if responsibilities.
no longer is necessary or in the public you have any questions on whether a 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6),
interest. particular circumstance is subject to an VI(C)(8), VI(D), VI(E), and VIII of the Final
exception under the judgment. Judgment, the Acquirer is bound to the Final
XII. NOTICE A copy of the judgment is attached. Please Judgment only as to (i) each Acquired
For purposes of this Final Judgment, any read it carefully and familiarize yourself with Station, each Acquired Station’s successors
notice or other communication required to be its terms. The judgment, rather than the and assigns, and each Acquired Station’s
provided to the United States shall be sent above description, is controlling. If you have subsidiaries and divisions, and each
to the person at the address set forth below any questions about the judgment or how it Acquired Station’s directors, officers, and
(or such other addresses as the United States affects your sale of spot advertising, please employees, (ii) Acquirer’s officers and
may specify in writing to Defendant): Chief, contact me as soon as possible. directors, and (iii) employees with
Media, Entertainment, and Professional Please sign and return the attached management or supervisory responsibilities
Services Section, U.S. Department of Justice, Employee Certification to [Defendant’s for Acquirer’s business or operations related
Antitrust Division, 450 Fifth Street, NW, Antitrust Compliance Officer] within thirty to the sale of spot advertising on any
Suite 4000, Washington, D.C. 20530. days of your receipt of this letter. Thank you Acquired Station.
XIII. PUBLIC INTEREST DETERMINATION for your cooperation. 4. The release contained in Sections VII(C)
Sincerely, and (D) applies to the Acquirer, but only to
Entry of this Final Judgment is in the civil actions or criminal charges arising from
public interest. The parties have complied [Defendant’s Antitrust Compliance Officer]
actions taken by any Acquired Station.
with the requirements of the Antitrust Employee Certification 5. The Acquirer shall not be bound by
Procedures and Penalties Act, 15 U.S.C. § 16, Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7),
including making copies available to the I, ll [name], ll [position] at ll [station
or location] do hereby certify that I (i) have and VI(F) of the Final Judgment at all.
public of this Final Judgment, the 6. Section VI(A) applies to the Acquirer,
Competitive Impact Statement, and any read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not but is modified to make the initial period for
comments thereon and the United States’ appointing an Antitrust Compliance Officer
responses to comments. Based upon the aware of any violation of the Final Judgment
that has not been reported to [Defendant]; in the first sentence 120 days from
record before the Court, which includes the consummation of the Acquirer’s acquisition
Competitive Impact Statement and any and (iii) understand that my failure to
comply with this Final Judgment may result of the Acquired Station or Acquired Stations.
comments and response to comments filed This Acknowledgement of Applicability
with the Court, entry of this Final Judgment in an enforcement action for civil or criminal
contempt of court. may be voided by a joint written agreement
is in the public interest.
lllllllllllllllllllll between the United States and the Acquirer.
IT IS SO ORDERED by the Court, this l
Name: Dated: [ ]
l day of ll, 201ll.
Court approval subject to procedures of Date: Respectfully submitted,
Antitrust Procedures and Penalties Act, 15 Exhibit 2 /s/ lllllllllllllllllll
U.S.C. § 16 [Counsel for Acquirer]
United States District Court for the District
lllllllllllllllllllll of Columbia United States District Court for the District
United States District Judge United States of America; Plaintiff, v. of Columbia
Exhibit 1 Sinclair Broadcast Group, Inc., et al. United States of America; Plaintiff, v.
Defendants. Sinclair Broadcast Group, Inc., et al.
[Company Letterhead]
Case No. 1:18–cv–2609 Defendants.
[Name and Address of Antitrust Compliance
Officer] Judge: Tanya S. Chutkan Case No. 1:18–cv–2609
Judge: Tanya S. Chutkan
Re: Prohibitions Against Sharing of ACKNOWLEDGEMENT OF APPLICABILITY
Competitively Sensitive Information The undersigned acknowledges that [Full [PROPOSED] FINAL JUDGMENT
Dear [XX]: Buyer Name], including its successors and WHEREAS, Plaintiff, United States of
I provide you this notice regarding a assigns, and its subsidiaries, divisions, and America, filed its Complaint on November
judgment recently entered by a federal judge broadcast television stations, and their ll, 2018, alleging that Defendant Meredith
in Washington, D.C. prohibiting the sharing directors, officers, and employees Corporation, among others, violated Section
of certain information with other broadcast (‘‘Acquirer’’), following consummation of the 1 of the Sherman Act, 15 U.S.C. § 1, the
television station(s). Acquirer’s acquisition of [insert names of United States and Defendant, by their
The judgment applies to our company and station or stations acquired] (each, an respective attorneys, have consented to the
all of its employees, including you, so it is ‘‘Acquired Station’’), is bound by the Final entry of this Final Judgment without trial or
important that you understand the Judgment entered by this Court on [date] adjudication of any issue of fact or law;
obligations it imposes on us. [CEO Name] has (‘‘Final Judgment’’), as if the Acquirer were AND WHEREAS, this Final Judgment does
asked me to let each of you know that [s/he] a Defendant under the Final Judgment, as not constitute any evidence against or
expects you to take these obligations follows: admission by any party regarding any issue
seriously and abide by them. 1. The Acquirer shall be bound in full by of fact or law;
The judgment prohibits us from sharing or all Sections of the Consent Decree not AND WHEREAS, the United States and
receiving, directly or indirectly (including specifically discussed below. Defendant agree to be bound by the
through our national sales representative 2. As to Sections IV, V, and VII of the Final provisions of this Final Judgment pending its
firm), competitively sensitive information Judgment, the Acquirer is bound to the Final approval by this Court;
khammond on DSK30JT082PROD with NOTICES2
with or from any employee, agent, or Judgment only as to (i) each Acquired AND WHEREAS, the Defendant agrees to
representative of another broadcast television Station, each Acquired Station’s successors undertake certain actions and to refrain from
station in the same DMA it does not own or and assigns, and each Acquired Station’s engaging in certain forms of information
operate. Competitively sensitive information subsidiaries and divisions, and each sharing with its competitors;
means any non-public information regarding Acquired Station’s directors, officers, and NOW THEREFORE, before any testimony
the sale of spot advertising on broadcast employees, (ii) Acquirer’s officers and is taken, without trial or adjudication of any
television stations, including information directors only with respect to any issue of fact or law, and upon consent of the
relating to any pricing or pricing strategies, responsibilities or actions regarding any parties, it is ORDERED, ADJUDGED, AND
pacing, holding capacity, revenues, or market Acquired Stations, and (iii) employees with DECREED:
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![62982 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices
Federal Rules of Civil Procedure, and no longer is necessary or in the public you have any questions on whether a
Defendant marks each pertinent page of such interest. particular circumstance is subject to an
material, ‘‘Subject to claim of protection exception under the judgment.
XII. NOTICE A copy of the judgment is attached. Please
under Rule 26(c)(1)(G) of the Federal Rules
of Civil Procedure,’’ then the United States For purposes of this Final Judgment, any read it carefully and familiarize yourself with
shall give Defendant ten calendar days’ notice or other communication required to be its terms. The judgment, rather than the
notice prior to divulging such material in any provided to the United States shall be sent above description, is controlling. If you have
legal proceeding (other than a grand jury to the person at the address set forth below any questions about the judgment or how it
proceeding). (or such other addresses as the United States affects your sale of spot advertising, please
may specify in writing to Defendant): Chief, contact me as soon as possible.
IX. RETENTION OF JURISDICTION Media, Entertainment, and Professional Please sign and return the attached
This Court retains jurisdiction to enable Services Section, U.S. Department of Justice, Employee Certification to [Defendant’s
any party to this Final Judgment to apply to Antitrust Division, 450 Fifth Street NW, Suite Antitrust Compliance Officer] within thirty
this Court at any time for further orders and 4000, Washington, D.C. 20530. days of your receipt of this letter. Thank you
directions as may be necessary or appropriate XIII. PUBLIC INTEREST DETERMINATION for your cooperation.
to carry out or construe this Final Judgment, Sincerely,
to modify any of its provisions, to enforce Entry of this Final Judgment is in the
[Defendant’s Antitrust Compliance Officer]
compliance, and to punish violations of its public interest. The parties have complied
provisions. with the requirements of the Antitrust Employee Certification
Procedures and Penalties Act, 15 U.S.C. § 16, I, ll [name], ll [position] at [station or
X. ENFORCEMENT OF FINAL JUDGMENT including making copies available to the location] do hereby certify that I (i) have read
A. The United States retains and reserves public of this Final Judgment, the and understand, and agree to abide by, the
all rights to enforce the provisions of this Competitive Impact Statement, and any terms of the Final Judgment; (ii) am not
Final Judgment, including its right to seek an comments thereon and the United States’ aware of any violation of the Final Judgment
order of contempt from this Court. Defendant responses to comments. Based upon the
that has not been reported to [Defendant];
agrees that in any civil contempt action, any record before the Court, which includes the
and (iii) understand that my failure to
motion to show cause, or any similar civil Competitive Impact Statement and any
comply with this Final Judgment may result
action brought by the United States regarding comments and response to comments filed
in an enforcement action for civil or criminal
an alleged violation of this Final Judgment, with the Court, entry of this Final Judgment
contempt of court.
is in the public interest.
the United States may establish a violation of lllllllllllllllllllll
the decree and the appropriateness of any IT IS SO ORDERED by the Court, this l
Name:
remedy therefor by a preponderance of the l day of ll, 201ll.
Date:
evidence, and Defendant waives any Court approval subject to procedures of
argument that a different standard of proof Antitrust Procedures and Penalties Act, 15 Exhibit 2
should apply. U.S.C. § 16
United States District Court for the District
B. The Final Judgment should be lllllllllllllllllllll of Columbia
interpreted to give full effect to the United States District Judge
procompetitive purposes of the antitrust laws United States of America; Plaintiff,
and to restore all competition the United Exhibit 1 v.Sinclair Broadcast Group, Inc., et al.
States alleged was harmed by the challenged Defendants.
[Company Letterhead]
conduct. Defendant agrees that it may be held Case No. 1:18–cv–2609
[Name and Address of Antitrust Compliance
in contempt of, and that the Court may Judge: Tanya S. Chutkan
Officer]
enforce, any provision of this Final Judgment
Re: Prohibitions Against Sharing of ACKNOWLEDGEMENT OF APPLICABILITY
that, as interpreted by the Court in light of
these procompetitive principles and applying Competitively Sensitive Information The undersigned acknowledges that [Full
ordinary tools of interpretation, is stated Dear [XX]: Buyer Name], including its successors and
specifically and in reasonable detail, whether I provide you this notice regarding a assigns, and its subsidiaries, divisions, and
or not it is clear and unambiguous on its face. judgment recently entered by a federal judge broadcast television stations, and their
In any such interpretation, the terms of this in Washington, D.C. prohibiting the sharing directors, officers, and employees
Final Judgment should not be construed of certain information with other broadcast (‘‘Acquirer’’), following consummation of the
against either party as the drafter. television station(s). Acquirer’s acquisition of [insert names of
C. In any enforcement proceeding in which The judgment applies to our company and station or stations acquired] (each, an
the Court finds that Defendant has violated all of its employees, including you, so it is ‘‘Acquired Station’’), is bound by the Final
this Final Judgment, the United States may important that you understand the Judgment entered by this Court on [date]
apply to the Court for a one-time extension obligations it imposes on us. [CEO Name] has (‘‘Final Judgment’’), as if the Acquirer were
of this Final Judgment, together with such asked me to let each of you know that [s/he] a Defendant under the Final Judgment, as
other relief as may be appropriate. In expects you to take these obligations follows:
connection with any successful effort by the seriously and abide by them. 7. The Acquirer shall be bound in full by
United States to enforce this Final Judgment The judgment prohibits us from sharing or all Sections of the Consent Decree not
against Defendant, whether litigated or receiving, directly or indirectly (including specifically discussed below.
resolved prior to litigation, Defendant agrees through our national sales representative 8. As to Sections IV, V, and VII of the Final
to reimburse the United States for the fees firm), competitively sensitive information Judgment, the Acquirer is bound to the Final
and expenses of its attorneys, as well as any with or from any employee, agent, or Judgment only as to (i) each Acquired
other costs including experts’ fees, incurred representative of another broadcast television Station, each Acquired Station’s successors
in connection with that enforcement effort, station in the same DMA it does not own or and assigns, and each Acquired Station’s
including in the investigation of the potential operate. Competitively sensitive information subsidiaries and divisions, and each
violation. means any non-public information regarding Acquired Station’s directors, officers, and
khammond on DSK30JT082PROD with NOTICES2
the sale of spot advertising on broadcast employees, (ii) Acquirer’s officers and
XI. EXPIRATION OF FINAL JUDGMENT television stations, including information directors only with respect to any
Unless this Court grants an extension, this relating to any pricing or pricing strategies, responsibilities or actions regarding any
Final Judgment shall expire seven years from pacing, holding capacity, revenues, or market Acquired Stations, and (iii) employees with
the date of its entry, except that after five shares. There are limited exceptions to this management or supervisory responsibilities
years from the date of its entry, this Final restriction, which are listed in the judgment. for Acquirer’s business or operations related
Judgment may be terminated upon notice by The company will provide briefing on the to the sale of spot advertising on any
the United States to the Court and Defendant legitimate or illegitimate exchange of Acquired Station, only with respect to those
that the continuation of the Final Judgment information. You must consult with me if responsibilities.
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9. As to Section VI(C)(3), VI(C)(4), VI(C)(6), The allegations in the Complaint arise under does not on its own render the information
VI(C)(8), VI(D), VI(E), and VIII of the Final Section 1 of the Sherman Act, as amended, public.
Judgment, the Acquirer is bound to the Final 15 U.S.C. § 1. See 28 U.S.C. § 1331. J. ‘‘Person’’ means any natural person,
Judgment only as to (i) each Acquired corporation, company, partnership, joint
Station, each Acquired Station’s successors II. DEFINITIONS
venture, firm, association, proprietorship,
and assigns, and each Acquired Station’s As used in this Final Judgment: agency, board, authority, commission, office,
subsidiaries and divisions, and each A. ‘‘Advertiser’’ means an advertiser, an or other business or legal entity, whether
Acquired Station’s directors, officers, and advertiser’s buying agent, or an advertiser’s private or governmental.
employees, (ii) Acquirer’s officers and representative. K. ‘‘Sales Representative Firm’’ means any
directors, and (iii) employees with B. ‘‘Agreement’’ means any agreement, organization, including without limitation
management or supervisory responsibilities understanding, pact, contract, or Katz Media Group, Inc. and Cox Reps, Inc.,
for Acquirer’s business or operations related arrangement, formal or informal, oral or and their respective subsidiaries and
to the sale of spot advertising on any written, between two or more Persons. divisions, that represents a Station or its
Acquired Station. C. ‘‘Communicate,’’ ‘‘Communicating,’’ and owner in the sale of spot advertising.
10. The release contained in Sections ‘‘Communication(s)’’ means to provide, send, L. ‘‘Sales Representative Firm Manager’’
VII(C) and (D) applies to the Acquirer, but discuss, circulate, exchange, request, or means, for each of Defendant’s Sales
only to civil actions or criminal charges solicit information, whether directly or Representative Firms, the employee of the
arising from actions taken by any Acquired indirectly, and regardless of the means by Sales Representative Firm with primary
Station. which it is accomplished, including orally or responsibility for the relationship with
11. The Acquirer shall not be bound by by written means of any kind, such as Defendant.
Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), electronic communications, e-mails, M. ‘‘Sales Staff’’ means Defendant’s
and VI(F) of the Final Judgment at all. facsimiles, telephone communications, employees with responsibility for the sale of
12. Section VI(A) applies to the Acquirer, voicemails, text messages, audio recordings, spot advertising on any Station.
but is modified to make the initial period for meetings, interviews, correspondence, N. ‘‘Station’’ means any broadcast
appointing an Antitrust Compliance Officer exchange of written or recorded information, television station, its successors and assigns,
in the first sentence 120 days from or face-to-face meetings. and its subsidiaries, divisions, groups, and its
consummation of the Acquirer’s acquisition D. ‘‘Competitively Sensitive Information’’ owner or operator and its directors, officers,
of the Acquired Station or Acquired Stations. means any of the following information, less managers, and employees, unless a Station
This Acknowledgement of Applicability than eighteen months old, of Defendant or owns, is owned by, or is under common
may be voided by a joint written agreement any broadcast television station regarding the ownership with a Sales Representative Firm,
between the United States and the Acquirer. sale of spot advertising on broadcast in which case that Sales Representative Firm
Dated: [ ] television stations: Non-Public Information will not be considered a Station.
Respectfully submitted, relating to pricing or pricing strategies,
pacing, holding capacity, revenues, or market III. APPLICABILITY
/s/ lllllllllllllllllll
shares. Reports containing only aggregated This Final Judgment applies to Defendant,
[Counsel for Acquirer]
market-level or national data are not other Persons in active concert or
United States District Court for the District Competitively Sensitive Information, but participation with Defendant who receive
of Columbia reports (including by paid subscription) that actual notice of this Final Judgment by
United States of America; Plaintiff, v. are customized or confidential to a particular personal service or otherwise, and any
Sinclair Broadcast Group, Inc., et al. Station or broadcast television station group Person that signs an Acknowledgment of
Defendants. are Competitively Sensitive Information. Applicability, attached as Exhibit 2, to the
E. ‘‘Cooperative Agreement’’ means (1) extent set forth therein, as a condition of the
Case No. 1:18–cv–2609 joint sales agreements, joint operating purchase of a Station owned by Defendant as
Judge: Tanya S. Chutkan agreements, local marketing agreements, of October 1, 2018. This Final Judgment
[PROPOSED] FINAL JUDGMENT news share agreements, or shared services applies to Defendant’s actions performed
agreements, or (2) any agreement through under any Cooperative Agreement, even if
WHEREAS, Plaintiff, United States of
America, filed its Complaint on November l which a Person exercises control over any those actions are taken on behalf of a third
l, 2018, alleging that Defendant Griffin broadcast television station not owned by the party. This Final Judgment is fully
Communications, LLC, among others, Person. enforceable, including by penalty of
violated Section 1 of the Sherman Act, 15 F. ‘‘Defendant’’ means Griffin contempt, against all of the foregoing.
U.S.C. § 1, the United States and Defendant, Communications, LLC, an Oklahoma limited
liability company with its headquarters in IV. PROHIBITED CONDUCT
by their respective attorneys, have consented
to the entry of this Final Judgment without Oklahoma City, Oklahoma, its successors and A. Defendant’s Management and Sales Staff
trial or adjudication of any issue of fact or assigns, and its subsidiaries, divisions, and shall not, directly or indirectly:
law; Stations, and their directors, officers, and 1. Communicate Competitively Sensitive
AND WHEREAS, this Final Judgment does employees. Information to any Station in the same DMA
not constitute any evidence against or G. ‘‘DMA’’ means Designated Market Area it does not own or operate;
admission by any party regarding any issue as defined by A.C. Nielsen Company and 2. Knowingly use Competitively Sensitive
of fact or law; used by the Investing in Television BIA Information from or regarding any Station in
AND WHEREAS, the United States and Market Report 2018. the same DMA it does not own or operate;
Defendant agree to be bound by the H. ‘‘Management’’ means all directors and 3. Encourage or facilitate the
provisions of this Final Judgment pending its officers of Defendant, or any other employee Communication of Competitively Sensitive
approval by this Court; with management or supervisory Information to or from any Station in the
AND WHEREAS, the Defendant agrees to responsibilities for Defendant’s business or same DMA it does not own or operate; or
undertake certain actions and to refrain from operations related to the sale of spot 4. Attempt to enter into, enter into,
engaging in certain forms of information advertising on any Station. maintain, or enforce any agreement to
sharing with its competitors; I. ‘‘Non-Public Information’’ means Communicate Competitively Sensitive
khammond on DSK30JT082PROD with NOTICES2
NOW THEREFORE, before any testimony information that is not available from public Information with any Station in the same
is taken, without trial or adjudication of any sources or generally available to the public. DMA it does not own or operate.
issue of fact or law, and upon consent of the Measurement or quantification of a Station’s B. The prohibitions under Paragraph IV(A)
parties, it is ORDERED, ADJUDGED, AND future holding capacity is Non-Public apply to Defendant’s Communicating or
DECREED: Information, but measurement or agreeing to Communicate through a Sales
quantification of a Station’s past holding Representative Firm or a third-party agent at
I. JURISDICTION capacity is not Non-Public Information. For Defendant’s instruction or request.
This Court has jurisdiction over the subject the avoidance of doubt, the fact that C. Defendant shall not sell any Station
matter and each of the parties to this action. information is available by paid subscription owned by the Defendant as of October 1,
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![62986 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices
of a Station that is acquired by Defendant Federal Rules of Civil Procedure, and no longer is necessary or in the public
after entry of this Final Judgment, was Defendant marks each pertinent page of such interest.
Communicated or entered into before the material, ‘‘Subject to claim of protection
acquisition and terminated within 120 days XII. NOTICE
under Rule 26(c)(1)(G) of the Federal Rules
after the closing of the acquisition); and of Civil Procedure,’’ then the United States For purposes of this Final Judgment, any
2. does not constitute or include an shall give Defendant ten calendar days’ notice or other communication required to be
agreement to fix prices or divide markets. notice prior to divulging such material in any provided to the United States shall be sent
D. The United States’ agreement set forth legal proceeding (other than a grand jury to the person at the address set forth below
in Paragraph VII(C) does not apply to any proceeding). (or such other addresses as the United States
acts of perjury or subornation of perjury (18 may specify in writing to Defendant): Chief,
U.S.C. §§ 1621–22), making a false statement IX. RETENTION OF JURISDICTION Media, Entertainment, and Professional
or declaration (18 U.S.C. §§ 1001, 1623), This Court retains jurisdiction to enable Services Section, U.S. Department of Justice,
contempt (18 U.S.C. §§ 401–402), or any party to this Final Judgment to apply to Antitrust Division, 450 Fifth Street NW, Suite
obstruction of justice (18 U.S.C. § 1503, et this Court at any time for further orders and 4000, Washington, D.C. 20530.
seq.) by the Defendant or its officers, directions as may be necessary or appropriate XIII. PUBLIC INTEREST DETERMINATION
directors, and employees. The United States’ to carry out or construe this Final Judgment,
agreement set forth in Paragraph VII(C) does to modify any of its provisions, to enforce Entry of this Final Judgment is in the
not release any claims against any Sales compliance, and to punish violations of its public interest. The parties have complied
Representative Firm. provisions. with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. § 16,
VIII. COMPLIANCE INSPECTION X. ENFORCEMENT OF FINAL JUDGMENT including making copies available to the
A. For the purposes of determining or A. The United States retains and reserves public of this Final Judgment, the
securing compliance with this Final all rights to enforce the provisions of this Competitive Impact Statement, and any
Judgment or of any related orders, or of Final Judgment, including its right to seek an comments thereon and the United States’
determining whether the Final Judgment order of contempt from this Court. Defendant responses to comments. Based upon the
should be modified, and subject to any agrees that in any civil contempt action, any record before the Court, which includes the
legally recognized privilege, from time to motion to show cause, or any similar civil Competitive Impact Statement and any
time authorized representatives of the United action brought by the United States regarding comments and response to comments filed
States Department of Justice, including an alleged violation of this Final Judgment, with the Court, entry of this Final Judgment
consultants and other persons retained by the the United States may establish a violation of is in the public interest.
United States, shall, upon written request of the decree and the appropriateness of any IT IS SO ORDERED by the Court, this l
an authorized representative of the Assistant remedy therefor by a preponderance of the l day of ll, 201ll.
Attorney General in charge of the Antitrust evidence, and Defendant waives any Court approval subject to procedures of
Division, and on reasonable notice to argument that a different standard of proof Antitrust Procedures and Penalties Act, 15
Defendant, be permitted: should apply. U.S.C. § 16
1. to access during Defendant’s office hours B. The Final Judgment should be lllllllllllllllllllll
to inspect and copy, or at the option of the interpreted to give full effect to the United States District Judge
United States, to require Defendant to procompetitive purposes of the antitrust laws
provide electronic or hard copies of all and to restore all competition the United Exhibit 1
books, ledgers, accounts, records, data, and States alleged was harmed by the challenged [Company Letterhead]
documents in the possession, custody, or conduct. Defendant agrees that it may be held [Name and Address of Antitrust Compliance
control of Defendant, relating to any matters in contempt of, and that the Court may Officer]
that are the subject of this Final Judgment, enforce, any provision of this Final Judgment Re: Prohibitions Against Sharing of
not protected by the attorney-client privilege that, as interpreted by the Court in light of Competitively Sensitive Information
or the attorney work product doctrine; and these procompetitive principles and applying
2. to interview, either informally or on the ordinary tools of interpretation, is stated Dear [XX]:
record, Defendant’s officers, employees, or specifically and in reasonable detail, whether I provide you this notice regarding a
agents, who may have their individual or not it is clear and unambiguous on its face. judgment recently entered by a federal judge
counsel present, regarding such matters. The In any such interpretation, the terms of this in Washington, D.C. prohibiting the sharing
interviews shall be subject to the reasonable Final Judgment should not be construed of certain information with other broadcast
convenience of the interviewee and without against either party as the drafter. television station(s).
restraint or interference by Defendant; and C. In any enforcement proceeding in which The judgment applies to our company and
3. to obtain from Defendant written reports the Court finds that Defendant has violated all of its employees, including you, so it is
or responses to written interrogatories, of this Final Judgment, the United States may important that you understand the
information not protected by the attorney- apply to the Court for a one-time extension obligations it imposes on us. [CEO Name] has
client privilege or attorney work product of this Final Judgment, together with such asked me to let each of you know that [s/he]
doctrine, under oath if requested, relating to other relief as may be appropriate. In expects you to take these obligations
any matters that are the subject of this Final connection with any successful effort by the seriously and abide by them.
Judgment as may be requested. United States to enforce this Final Judgment The judgment prohibits us from sharing or
B. No information or documents obtained against Defendant, whether litigated or receiving, directly or indirectly (including
by the means provided in this Section VIII resolved prior to litigation, Defendant agrees through our national sales representative
shall be divulged by the United States to any to reimburse the United States for the fees firm), competitively sensitive information
Person other than an authorized and expenses of its attorneys, as well as any with or from any employee, agent, or
representative of the executive branch of the other costs including experts’ fees, incurred representative of another broadcast television
United States, except in the course of legal in connection with that enforcement effort, station in the same DMA it does not own or
proceedings to which the United States is a including in the investigation of the potential operate. Competitively sensitive information
party (including grand jury proceedings), or violation. means any non-public information regarding
khammond on DSK30JT082PROD with NOTICES2
for the purpose of securing compliance with the sale of spot advertising on broadcast
this Final Judgment, or for law enforcement XI. EXPIRATION OF FINAL JUDGMENT television stations, including information
purposes, or as otherwise required by law. Unless this Court grants an extension, this relating to any pricing or pricing strategies,
C. If at the time information or documents Final Judgment shall expire seven years from pacing, holding capacity, revenues, or market
are furnished by Defendant to the United the date of its entry, except that after five shares. There are limited exceptions to this
States, Defendant represents and identifies in years from the date of its entry, this Final restriction, which are listed in the judgment.
writing the material in any such information Judgment may be terminated upon notice by The company will provide briefing on the
or documents to which a claim of protection the United States to the Court and Defendant legitimate or illegitimate exchange of
may be asserted under Rule 26(c)(1)(G) of the that the continuation of the Final Judgment information. You must consult with me if
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you have any questions on whether a 15. As to Section VI(C)(3), VI(C)(4), The allegations in the Complaint arise under
particular circumstance is subject to an VI(C)(6), VI(C)(8), VI(D), VI(E), and VIII of the Section 1 of the Sherman Act, as amended,
exception under the judgment. Final Judgment, the Acquirer is bound to the 15 U.S.C. § 1. See 28 U.S.C. § 1331.
A copy of the judgment is attached. Please Final Judgment only as to (i) each Acquired
II. DEFINITIONS
read it carefully and familiarize yourself with Station, each Acquired Station’s successors
its terms. The judgment, rather than the and assigns, and each Acquired Station’s As used in this Final Judgment:
above description, is controlling. If you have subsidiaries and divisions, and each A. ‘‘Advertiser’’ means an advertiser, an
any questions about the judgment or how it Acquired Station’s directors, officers, and advertiser’s buying agent, or an advertiser’s
affects your sale of spot advertising, please employees, (ii) Acquirer’s officers and representative.
contact me as soon as possible. directors, and (iii) employees with B. ‘‘Agreement’’ means any agreement,
Please sign and return the attached management or supervisory responsibilities understanding, pact, contract, or
Employee Certification to [Defendant’s for Acquirer’s business or operations related arrangement, formal or informal, oral or
Antitrust Compliance Officer] within thirty to the sale of spot advertising on any written, between two or more Persons.
days of your receipt of this letter. Thank you Acquired Station. C. ‘‘Communicate,’’ ‘‘Communicating,’’ and
for your cooperation. 16. The release contained in Sections ‘‘Communication(s)’’ means to provide, send,
VII(C) and (D) applies to the Acquirer, but discuss, circulate, exchange, request, or
Sincerely, solicit information, whether directly or
only to civil actions or criminal charges
[Defendant’s Antitrust Compliance Officer] arising from actions taken by any Acquired indirectly, and regardless of the means by
Station. which it is accomplished, including orally or
Employee Certification by written means of any kind, such as
17. The Acquirer shall not be bound by
I, ll [name], ll [position] at ll [station Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), electronic communications, e-mails,
or location] do hereby certify that I (i) have and VI(F) of the Final Judgment at all. facsimiles, telephone communications,
read and understand, and agree to abide by, 18. Section VI(A) applies to the Acquirer, voicemails, text messages, audio recordings,
the terms of the Final Judgment; (ii) am not but is modified to make the initial period for meetings, interviews, correspondence,
aware of any violation of the Final Judgment appointing an Antitrust Compliance Officer exchange of written or recorded information,
that has not been reported to [Defendant]; in the first sentence 120 days from or face-to-face meetings.
and (iii) understand that my failure to consummation of the Acquirer’s acquisition D. ‘‘Competitively Sensitive Information’’
comply with this Final Judgment may result of the Acquired Station or Acquired Stations. means any of the following information, less
in an enforcement action for civil or criminal This Acknowledgement of Applicability than eighteen months old, of Defendant or
contempt of court. may be voided by a joint written agreement any broadcast television station regarding the
lllllllllllllllllllll between the United States and the Acquirer. sale of spot advertising on broadcast
Name: television stations: Non-Public Information
Dated: [ ] relating to pricing or pricing strategies,
Date: Respectfully submitted, pacing, holding capacity, revenues, or market
Exhibit 2 /s/ lllllllllllllllllll shares. Reports containing only aggregated
[Counsel for Acquirer] market-level or national data are not
United States District Court for the District Competitively Sensitive Information, but
of Columbia United States District Court for the District reports (including by paid subscription) that
United States of America; Plaintiff, v. of Columbia are customized or confidential to a particular
Sinclair Broadcast Group, Inc., et al. United States of America; Plaintiff, v. Station or broadcast television station group
Defendants. Sinclair Broadcast Group, Inc., et al. are Competitively Sensitive Information.
Case No. 1:18–cv–2609 Defendants. E. ‘‘Cooperative Agreement’’ means (1)
Judge: Tanya S. Chutkan Case No. 1:18–cv–2609 joint sales agreements, joint operating
Judge: Tanya S. Chutkan agreements, local marketing agreements,
ACKNOWLEDGEMENT OF APPLICABILITY
news share agreements, or shared services
The undersigned acknowledges that [Full [PROPOSED] FINAL JUDGMENT agreements, or (2) any agreement through
Buyer Name], including its successors and WHEREAS, Plaintiff, United States of which a Person exercises control over any
assigns, and its subsidiaries, divisions, and America, filed its Complaint on November broadcast television station not owned by the
broadcast television stations, and their ll, 2018, alleging that Defendant Person.
directors, officers, and employees Dreamcatcher Broadcasting, LLC, among F. ‘‘Defendant’’ means Dreamcatcher
(‘‘Acquirer’’), following consummation of the others, violated Section 1 of the Sherman Broadcasting, LLC, a Delaware corporation
Acquirer’s acquisition of [insert names of Act, 15 U.S.C. § 1, the United States and with its headquarters in Santa Monica,
station or stations acquired] (each, an Defendant, by their respective attorneys, have California, its successors and assigns, and its
‘‘Acquired Station’’), is bound by the Final consented to the entry of this Final Judgment subsidiaries, divisions, and Stations, and
Judgment entered by this Court on [date] without trial or adjudication of any issue of their directors, officers, and employees.
(‘‘Final Judgment’’), as if the Acquirer were fact or law; G. ‘‘DMA’’ means Designated Market Area
a Defendant under the Final Judgment, as AND WHEREAS, this Final Judgment does as defined by A.C. Nielsen Company and
follows: not constitute any evidence against or used by the Investing in Television BIA
13. The Acquirer shall be bound in full by admission by any party regarding any issue Market Report 2018.
all Sections of the Consent Decree not of fact or law; H. ‘‘Management’’ means all directors and
specifically discussed below. AND WHEREAS, the United States and officers of Defendant, or any other employee
14. As to Sections IV, V, and VII of the Defendant agree to be bound by the with management or supervisory
Final Judgment, the Acquirer is bound to the provisions of this Final Judgment pending its responsibilities for Defendant’s business or
Final Judgment only as to (i) each Acquired approval by this Court; operations related to the sale of spot
Station, each Acquired Station’s successors AND WHEREAS, the Defendant agrees to advertising on any Station.
and assigns, and each Acquired Station’s undertake certain actions and to refrain from I. ‘‘Non-Public Information’’ means
subsidiaries and divisions, and each engaging in certain forms of information information that is not available from public
Acquired Station’s directors, officers, and sharing with its competitors; sources or generally available to the public.
khammond on DSK30JT082PROD with NOTICES2
employees, (ii) Acquirer’s officers and NOW THEREFORE, before any testimony Measurement or quantification of a Station’s
directors only with respect to any is taken, without trial or adjudication of any future holding capacity is Non-Public
responsibilities or actions regarding any issue of fact or law, and upon consent of the Information, but measurement or
Acquired Stations, and (iii) employees with parties, it is ORDERED, ADJUDGED, AND quantification of a Station’s past holding
management or supervisory responsibilities DECREED: capacity is not Non-Public Information. For
for Acquirer’s business or operations related the avoidance of doubt, the fact that
to the sale of spot advertising on any I. JURISDICTION information is available by paid subscription
Acquired Station, only with respect to those This Court has jurisdiction over the subject does not on its own render the information
responsibilities. matter and each of the parties to this action. public.
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![Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices 62991
provided to the United States shall be sent above description, is controlling. If you have subsidiaries and divisions, and each
to the person at the address set forth below any questions about the judgment or how it Acquired Station’s directors, officers, and
(or such other addresses as the United States affects your sale of spot advertising, please employees, (ii) Acquirer’s officers and
may specify in writing to Defendant): Chief, contact me as soon as possible. directors, and (iii) employees with
Media, Entertainment, and Professional Please sign and return the attached management or supervisory responsibilities
Services Section, U.S. Department of Justice, Employee Certification to [Defendant’s for Acquirer’s business or operations related
Antitrust Division, 450 Fifth Street, NW, Antitrust Compliance Officer] within thirty to the sale of spot advertising on any
Suite 4000, Washington, D.C. 20530. days of your receipt of this letter. Thank you Acquired Station.
for your cooperation. 4. The release contained in Sections VII(C)
XIII. PUBLIC INTEREST DETERMINATION and (D) applies to the Acquirer, but only to
Sincerely,
Entry of this Final Judgment is in the civil actions or criminal charges arising from
public interest. The parties have complied [Defendant’s Antitrust Compliance Officer] actions taken by any Acquired Station.
with the requirements of the Antitrust Employee Certification 5. The Acquirer shall not be bound by
Procedures and Penalties Act, 15 U.S.C. § 16, Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7),
including making copies available to the I, ll [name], ll [position] at ll [station and VI(F) of the Final Judgment at all.
public of this Final Judgment, the or location] do hereby certify that I (i) have 6. Section VI(A) applies to the Acquirer,
Competitive Impact Statement, and any read and understand, and agree to abide by, but is modified to make the initial period for
comments thereon and the United States’ the terms of the Final Judgment; (ii) am not appointing an Antitrust Compliance Officer
responses to comments. Based upon the aware of any violation of the Final Judgment in the first sentence 120 days from
record before the Court, which includes the that has not been reported to [Defendant]; consummation of the Acquirer’s acquisition
Competitive Impact Statement and any and (iii) understand that my failure to of the Acquired Station or Acquired Stations.
comments and response to comments filed comply with this Final Judgment may result This Acknowledgement of Applicability
with the Court, entry of this Final Judgment in an enforcement action for civil or criminal may be voided by a joint written agreement
is in the public interest. contempt of court. between the United States and the Acquirer.
lllllllllllllllllllll
IT IS SO ORDERED by the Court, this l Dated: [ ]
l day of ll, 201ll. Name: Respectfully submitted,
Date:
Court approval subject to procedures of /s/ lllllllllllllllllll
Antitrust Procedures and Penalties Act, 15 Exhibit 2 [Counsel for Acquirer]
U.S.C. § 16
lllllllllllllllllllll United States District Court for the District United States District Court for the District
of Columbia of Columbia
United States District Judge
United States of America; Plaintiff, v. United States of America, Plaintiff, v.
Exhibit 1 Sinclair Broadcast Group, Inc., et al., Sinclair Broadcast Group, Inc., Raycom
[Company Letterhead] Defendants. Media, Inc., Tribune Media Company,
[Name and Address of Antitrust Compliance Case No. 1:18–cv–2609 Meredith Corporation, Griffin
Officer] Judge: Tanya S. Chutkan Communications, LLC, and Dreamcatcher
Re: Prohibitions Against Sharing of Broadcasting, LLC, Defendants.
ACKNOWLEDGEMENT OF APPLICABILITY
Competitively Sensitive Information Case No. 1:18–cv–2609
The undersigned acknowledges that [Full Judge: Tanya S. Chutkan
Dear [XX]: Buyer Name], including its successors and
I provide you this notice regarding a assigns, and its subsidiaries, divisions, and COMPETITIVE IMPACT STATEMENT
judgment recently entered by a federal judge broadcast television stations, and their Plaintiff United States of America (‘‘United
in Washington, D.C. prohibiting the sharing directors, officers, and employees States’’), pursuant to Section 2(b) of the
of certain information with other broadcast (‘‘Acquirer’’), following consummation of the Antitrust Procedures and Penalties Act, 15
television station(s). Acquirer’s acquisition of [insert names of U.S.C. § 16(b)–(h) (‘‘APPA’’ or ‘‘Tunney
The judgment applies to our company and station or stations acquired] (each, an Act’’), files this Competitive Impact
all of its employees, including you, so it is ‘‘Acquired Station’’), is bound by the Final Statement relating to the proposed Final
important that you understand the Judgment entered by this Court on [date] Judgments against Defendants Sinclair
obligations it imposes on us. [CEO Name] has (‘‘Final Judgment’’), as if the Acquirer were Broadcast Group, Inc. (‘‘Sinclair’’), Raycom
asked me to let each of you know that [s/he] a Defendant under the Final Judgment, as Media, Inc. (‘‘Raycom’’), Tribune Media
expects you to take these obligations follows: Company (‘‘Tribune’’), Meredith Corporation
seriously and abide by them. 1. The Acquirer shall be bound in full by (‘‘Meredith’’), Griffin Communications, LLC
The judgment prohibits us from sharing or all Sections of the Consent Decree not (‘‘Griffin’’), and Dreamcatcher Broadcasting,
receiving, directly or indirectly (including specifically discussed below. LLC (‘‘Dreamcatcher’’) (collectively,
through our national sales representative 2. As to Sections IV, V, and VII of the Final ‘‘Defendants’’), submitted for entry in this
firm), competitively sensitive information Judgment, the Acquirer is bound to the Final civil antitrust proceeding.
with or from any employee, agent, or Judgment only as to (i) each Acquired
representative of another broadcast television Station, each Acquired Station’s successors I. Nature and Purpose of the Proceeding
station in the same DMA it does not own or and assigns, and each Acquired Station’s On November 13, 2018, the United States
operate. Competitively sensitive information subsidiaries and divisions, and each filed a civil antitrust complaint alleging that
means any non-public information regarding Acquired Station’s directors, officers, and Defendants agreed among themselves and
the sale of spot advertising on broadcast employees, (ii) Acquirer’s officers and other broadcast television stations in many
television stations, including information directors only with respect to any local markets to reciprocally exchange
relating to any pricing or pricing strategies, responsibilities or actions regarding any station-specific, competitively sensitive
pacing, holding capacity, revenues, or market Acquired Stations, and (iii) employees with information regarding spot advertising
shares. There are limited exceptions to this management or supervisory responsibilities revenues. The Complaint alleges Defendants’
restriction, which are listed in the judgment. for Acquirer’s business or operations related agreements are unreasonable restraints of
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The company will provide briefing on the to the sale of spot advertising on any trade that are unlawful under Section 1 of the
legitimate or illegitimate exchange of Acquired Station, only with respect to those Sherman Act, 15 U.S.C. § 1. The Complaint
information. You must consult with me if responsibilities. seeks injunctive relief to prevent Defendants
you have any questions on whether a 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), from exchanging competitively sensitive
particular circumstance is subject to an VI(C)(8), VI(D), VI(E), and VIII of the Final information with and among competing
exception under the judgment. Judgment, the Acquirer is bound to the Final broadcast television stations.
A copy of the judgment is attached. Please Judgment only as to (i) each Acquired Along with the Complaint, the United
read it carefully and familiarize yourself with Station, each Acquired Station’s successors States filed proposed Final Judgments for
its terms. The judgment, rather than the and assigns, and each Acquired Station’s each of the Defendants. The proposed Final
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![62994 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices
litigation, but avoids the time, expense, and Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 3d at 75 (noting that the court must simply
uncertainty of a full trial on the merits. also Microsoft, 56 F.3d at 1460–62; United determine whether there is a factual
States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 foundation for the government’s decisions
VII. Standard of Review Under the APPA for (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS such that its conclusions regarding the
the Proposed Final Judgments 84787, at *3. Instead: proposed settlements are reasonable); InBev,
The Clayton Act, as amended by the APPA, [t]he balancing of competing social and 2009 U.S. Dist. LEXIS 84787, at *20 (‘‘the
requires that proposed consent judgments in political interests affected by a proposed ‘public interest’ is not to be measured by
antitrust cases brought by the United States antitrust consent decree must be left, in the comparing the violations alleged in the
be subject to a 60-day comment period, after first instance, to the discretion of the complaint against those the court believes
which the court shall determine whether Attorney General. The court’s role in could have, or even should have, been
entry of the proposed Final Judgment ‘‘is in protecting the public interest is one of alleged’’). Because the ‘‘court’s authority to
the public interest.’’ 15 U.S.C. § 16(e)(1). In insuring that the government has not review the decree depends entirely on the
making that determination, the court, in breached its duty to the public in government’s exercising its prosecutorial
accordance with the statute as amended in consenting to the decree. The court is discretion by bringing a case in the first
2004, is required to consider: required to determine not whether a place,’’ it follows that ‘‘the court is only
(A) the competitive impact of such particular decree is the one that will best authorized to review the decree itself,’’ and
judgment, including termination of alleged serve society, but whether the settlement is not to ‘‘effectively redraft the complaint’’ to
violations, provisions for enforcement and ‘‘within the reaches of the public interest.’’ inquire into other matters that the United
modification, duration of relief sought, More elaborate requirements might States did not pursue. Microsoft, 56 F.3d at
anticipated effects of alternative remedies undermine the effectiveness of antitrust 1459–60. As a court in this district confirmed
actually considered, whether its terms are enforcement by consent decree. in SBC Communications, courts ‘‘cannot look
ambiguous, and any other competitive Bechtel, 648 F.2d at 666 (emphasis added) beyond the complaint in making the public
considerations bearing upon the adequacy of (citations omitted).5 interest determination unless the complaint
such judgment that the court deems is drafted so narrowly as to make a mockery
necessary to a determination of whether the In determining whether a proposed of judicial power.’’ SBC Commc’ns, 489 F.
consent judgment is in the public interest; settlement is in the public interest, a district Supp. 2d at 15.
and court ‘‘must accord deference to the In its 2004 amendments,6 Congress made
(B) the impact of entry of such judgment government’s predictions about the efficacy clear its intent to preserve the practical
upon competition in the relevant market or of its remedies, and may not require that the benefits of utilizing consent decrees in
markets, upon the public generally and remedies perfectly match the alleged antitrust enforcement, adding the
individuals alleging specific injury from the violations.’’ SBC Commc’ns, 489 F. Supp. 2d unambiguous instruction that ‘‘[n]othing in
violations set forth in the complaint at 17; see also U.S. Airways, 38 F. Supp. 3d this section shall be construed to require the
including consideration of the public benefit, at 74–75 (noting that a court should not reject court to conduct an evidentiary hearing or to
if any, to be derived from a determination of the proposed remedies because it believes require the court to permit anyone to
the issues at trial. others are preferable and that room must be intervene.’’ 15 U.S.C. § 16(e)(2); see also U.S.
15 U.S.C. § 16(e)(1)(A) & (B). In considering made for the government to grant Airways, 38 F. Supp. 3d at 76 (indicating that
these statutory factors, the court’s inquiry is concessions in the negotiation process for a court is not required to hold an evidentiary
necessarily a limited one as the government settlements); Microsoft, 56 F.3d at 1461 hearing or to permit intervenors as part of its
is entitled to ‘‘broad discretion to settle with (noting the need for courts to be ‘‘deferential review under the Tunney Act). This language
the defendant within the reaches of the to the government’s predictions as to the explicitly wrote into the statute what
public interest.’’ United States v. Microsoft effect of the proposed remedies’’); United Congress intended when it first enacted the
Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); States v. Archer-Daniels-Midland Co., 272 F. Tunney Act in 1974. As Senator Tunney
see generally United States v. SBC Supp. 2d 1, 6 (D.D.C. 2003) (noting that the explained: ‘‘[t]he court is nowhere compelled
Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. court should grant ‘‘due respect to the to go to trial or to engage in extended
2007) (assessing public interest standard government’s prediction as to the effect of proceedings which might have the effect of
under the Tunney Act); United States v. U.S. proposed remedies, its perception of the vitiating the benefits of prompt and less
Airways Group, Inc., 38 F. Supp. 3d 69, 75 market structure, and its views of the nature costly settlement through the consent decree
(D.D.C. 2014) (explaining that the ‘‘court’s of the case’’). The ultimate question is process.’’ 119 Cong. Rec. 24,598 (1973)
inquiry is limited’’ in Tunney Act whether ‘‘the remedies [obtained in the (statement of Sen. Tunney). Rather, the
settlements); United States v. InBev N.V./ decree are] so inconsonant with the procedure for the public interest
S.A., No. 08–1965 (JR), 2009 U.S. Dist. LEXIS allegations charged as to fall outside of the determination is left to the discretion of the
84787, at *3 (D.D.C. Aug. 11, 2009) (noting ‘reaches of the public interest.’ ’’ Microsoft, court, with the recognition that the court’s
that the court’s review of a consent judgment 56 F.3d at 1461 (quoting United States v. ‘‘scope of review remains sharply proscribed
is limited and only inquires ‘‘into whether Western Elec. Co., 900 F.2d 283, 309 (D.C. by precedent and the nature of Tunney Act
the government’s determination that the Cir. 1990)). To meet this standard, the United proceedings.’’ SBC Commc’ns, 489 F. Supp.
proposed remedies will cure the antitrust States ‘‘need only provide a factual basis for 2d at 11. A court can make its public interest
violations alleged in the complaint was concluding that the settlements are determination based on the competitive
reasonable, and whether the mechanism to reasonably adequate remedies for the alleged impact statement and response to public
enforce the final judgment are clear and harms.’’ SBC Commc’ns, 489 F. Supp. 2d at comments alone. U.S. Airways, 38 F. Supp.
manageable’’). 17. 3d at 76. See also United States v. Enova
As the United States Court of Appeals for Moreover, the court’s role under the APPA Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000)
the District of Columbia Circuit has held, is limited to reviewing the remedy in (noting that the ‘‘Tunney Act expressly
under the APPA a court considers, among relationship to the violations that the United allows the court to make its public interest
other things, the relationship between the States has alleged in its complaint, and does determination on the basis of the competitive
remedy secured and the specific allegations not authorize the court to ‘‘construct [its] impact statement and response to comments
in the government’s complaint, whether the own hypothetical case and then evaluate the alone’’); S. Rep. No. 93–298 93d Cong., 1st
decree is sufficiently clear, whether its decree against that case.’’ Microsoft, 56 F.3d Sess., at 6 (1973) (‘‘Where the public interest
at 1459; see also U.S. Airways, 38 F. Supp.
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enforcement mechanisms are sufficient, and
6 The 2004 amendments substituted ‘‘shall’’ for
whether the decree may positively harm
5 See also BNS, 858 F.2d at 464 (holding that the ‘‘may’’ in directing relevant factors for a court to
third parties. See Microsoft, 56 F.3d at 1458–
62. With respect to the adequacy of the relief court’s ‘‘ultimate authority under the [APPA] is consider and amended the list of factors to focus on
limited to approving or disapproving the consent competitive considerations and to address
secured by the decree, a court may not decree’’); United States v. Gillette Co., 406 F. Supp. potentially ambiguous judgment terms. Compare 15
‘‘engage in an unrestricted evaluation of what 713, 716 (D. Mass. 1975) (noting that, in this way, U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1)
relief would best serve the public.’’ United the court is constrained to ‘‘look at the overall (2006); see also SBC Commc’ns, 489 F. Supp. 2d at
States v. BNS, Inc., 858 F.2d 456, 462 (9th picture not hypercritically, nor with a microscope, 11 (concluding that the 2004 amendments ‘‘effected
Cir. 1988) (quoting United States v. Bechtel but with an artist’s reducing glass’’). minimal changes’’ to Tunney Act review).
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![Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Notices 62995
can be meaningfully evaluated simply on the Dated: November 13, 2018 20530, Phone: 202–598–2698, Facsimile:
basis of briefs and oral arguments, that is the Respectfully submitted, 202–514–7308, Email: Lee.Berger@usdoj.gov
approach that should be utilized.’’). lllllllllllllllllllll *Attorney of Record
VIII. Determinative Documents Lee F. Berger * (D.C. Bar #482435) [FR Doc. 2018–26201 Filed 12–4–18; 8:45 am]
There are no determinative materials or Trial Attorney, U.S. Department of Justice, BILLING CODE 4410–11–P
documents within the meaning of the APPA Antitrust Division, Media, Entertainment,
that were considered by the United States in and Professional Services Section, 450 Fifth
formulating the proposed Final Judgments. Street, N.W., Suite 4000, Washington, DC
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Document Created: 2018-12-05 02:36:43
Document Modified: 2018-12-05 02:36:43
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