Tele-Communication, Inc.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 941 0132]

Tele-Communication, Inc.; Proposed Consent Agreement With

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

-----------------------------------------------------------------------

SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

permit, among other things, Tele-Communication, Inc. (TCI) to complete

its acquisition of TeleCable, on the condition that it divest either

its own Columbus cable TV assets, or those of TeleCable, within twelve

months. If the divestitures were not completed on time, the consent

agreement would permit the Commission to appoint a trustee to complete

the transaction. In addition, TCI, for ten years, would be required to

obtain Commission approval before acquiring any cable TV system in the

Columbus, GA., area.

DATES: Comments must be received on or before April 24, 1995.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Ronald Rowe, FTC/S-2105, Washington, DC 20580, (202) 326-2610.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of

the Commission's Rules of Practice (16 CFR 2.34), notice is hereby

given that the following consent agreement containing a consent order

to cease and desist, having been filed with and accepted, subject to

final approval, by the Commission, has been placed on the public record

for a period of sixty (60) days. Public comment is invited. Such

comments or views will be considered by the Commission and will be

available for inspection and copying at its principal office in

accordance with Section 4.9(b)(6)(ii) of the Commission's rules of

Practice (16 CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

The Federal Trade Commission (``Commission''), having initiated an

investigation of the proposed acquisition of the common stock of

TeleCable Corporation by Tele-Communications, Inc. and the proposed

merger of TeleCable Corporation into TCI Communications, Inc., an

entity within Tele-Communications, Inc., and it now appearing that

Tele-Communications, Inc., hereinafter sometimes referred to as

``proposed respondent,'' is willing to enter into an agreement

containing an order to divest certain assets, and to cease and desist

from making certain acquisitions, and providing for other relief:

It is hereby agreed by and between proposed respondent, by its duly

authorized officer and attorney, and counsel for the Commission that:

1. Proposed respondent Tele-Communications, Inc. is a corporation

organized, existing, and doing business under and by virtue of the laws

of the State of Delaware, with its principal office and place of

business at 5619 DTC Parkway, Englewood, Colorado 80111.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft of complaint.

3. Proposed respondent waives:

a. any further procedural steps;

b. the requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

c. all rights to seek judicial review or otherwise to challenge or

contest the validity of the order entered pursuant to this agreement;

and

d. any claim under the Equal Access to Justice Act.

4. This agreement shall not become part of the public record of the

proceeding unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission it, together with the draft of

complaint contemplated thereby, will be placed on the public record for

a period of sixty (60) days and information in respect thereto publicly

released. The Commission thereafter may either withdraw its acceptance

of this agreement and so notify the proposed respondent, in which event

it will take such action as it may consider appropriate, or issue and

serve its complaint (in such form as the circumstances may require) and

decision, in disposition of the proceeding.

5. This agreement is for settlement purposes only and does not

constitute an admission by proposed respondent that the law has been

violated as alleged in the draft of complaint, or that the facts as

alleged in the draft complaint, other than jurisdictional facts, are

true.

6. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to the proposed

respondent, (1) issue its complaint corresponding in form and substance

with the draft of complaint and its decision containing the following

order to divest and to cease and desist in disposition of the

proceeding and (2) make information public with respect thereto. When

so entered, the order to divest and to cease and desist shall have the

same force and effect and may be altered, modified or set aside in the

same manner and within the same time provided by statute for other

orders. The order shall become final upon service. Delivery by the U.S.

Postal Service of the complaint and decision containing the agreed-to

order to proposed respondent's address as [[Page 9848]] stated in this

agreement shall constitute service. Proposed respondent waives any

right it may have to any other manner of service. The complaint may be

used in construing the terms of the order, and no agreement,

understanding, representation, or interpretation not contained in the

order or the agreement may be used to vary or contradict the terms of

the order.

7. Proposed respondent has read the proposed complaint and order

contemplated hereby. Proposed respondent understands that once the

order has been issued, it will be required to file one or more

compliance reports showing that it has fully complied with the order.

Proposed respondent further understands that it may be liable for civil

penalties in the amount provided by law for each violation of the order

after it becomes final.

Order

I

It is ordered that, as used in this order, the following

definitions shall apply:

A. ``Respondent'' or ``TCI'' means (1) Tele-Communications, Inc.

and its predecessors, successors and assigns, subsidiaries, and

divisions, and their respective directors, officers, agents, and

representatives; and (2) partnerships, joint ventures, groups and

affiliates that Tele-Communications, Inc. controls, directly or

indirectly, and their successors and assigns, and their respective

directors, officers, agents, and representatives.

B. ``Control'' means (i) the ability or right, contractual or

otherwise, to direct the management decisions of an entity, or (ii) an

ownership interest of 50% or greater unless a person or entity other

than Respondent has the right to direct the management decisions of

such entity.

C. ``Commission'' means the Federal Trade Commission.

D. ``Columbus Cable Television System Assets'' means either TCI's

Cable Television System or TeleCable's Cable Television System now

operating in Muscogee and Harris Counties, Georgia, including all

properties, privileges, rights, interests and claims, real and

personal, tangible and intangible, of every type and description that

are owned, leased, held or used principally in the provision of Cable

Television Service in Muscogee and Harris Counties, including the

governmental permits, franchises, intangibles, equipment and real

property.

E. ``Designated Columbus Cable Television System'' means the Cable

Television System chosen by TCI pursuant to Paragraph III B. 2. or if

TCI fails to designate a Cable Television System pursuant to, and

within the time limits of, Paragraph III B. 2., the Columbus Cable

Television System Assets.

F. ``Cable Television Service'' means the delivery of various video

entertainment and informational programming via a cable television

system.

G. ``Cable Television System'' means a facility, consisting of a

set of closed transmission paths and associated signal generation,

reception, and control equipment that is designed to provide cable

television service, which includes video programming and which is

provided to multiple subscribers within a community.

H. ``The Relevant Geographic Area'' means the counties of Muscogee

and Harris in the State of Georgia.

I. ``Competitiveness, viability and marketability'' of the Columbus

Cable Television System Assets means the Respondent shall continue the

operation of TCI's and TeleCable's Cable Television Systems in the

ordinary course of business without material change or alteration that

would adversely affect the value or goodwill of such Cable Television

Systems and the Columbus Cable Television System Assets.

II

It is further ordered that:

A. Respondent shall divest, absolutely and in good faith, within

twelve months of the date this order becomes final, one of the Cable

Television Systems constituting the Columbus Cable Television System

Assets. Respondent shall also divest such additional ancillary assets

and businesses and effect such arrangements as are necessary to assure

the competitiveness, viability and marketability of the Columbus Cable

Television System Assets. Respondent shall undertake its best efforts

to facilitate any governmental approvals required to effect divestiture

of the Columbus Cable Television System Assets and their continued use

in Cable Television Service in the Relevant Geographic Area. To ensure

the availability of programming to the divested Columbus Cable

Television System Assets, Respondent shall waive any exclusive rights

to distribute programming by means of Cable Television Systems in the

Relevant Geographic Area.

B. Respondent shall divest the Columbus Cable Television System

Assets only to an acquirer or acquirers that receive the prior approval

of the Commission and only in a manner that receives the prior approval

of the Commission. The purpose of the divestiture of the Columbus Cable

Television System Assets is to ensure the continued use of the Columbus

Cable Television System Assets as an ongoing, viable deliverer of Cable

Television Service in the Relevant Geographic Area, and to remedy the

lessening of competition resulting from the proposed acquisition of

TeleCable Corporation by TCI as alleged in the Commission's complaint.

C. Pending divestiture of the Columbus Cable Television System

Assets, respondent shall take such actions as are necessary to maintain

the competitiveness, viability and marketability of the Columbus Cable

Television System Assets and to prevent the destruction, removal,

wasting, deterioration, or impairment of any of the Columbus Cable

Television System Assets except for ordinary wear and tear.

III

It is further ordered that:

A. If TCI has not divested, absolutely and in good faith and with

the Commission's prior approval, the Columbus Cable Television System

Assets within twelve months of the date this order becomes final, the

Commission may appoint a trustee to divest the Columbus Cable

Television System Assets, provided, however, that if the Commission has

not approved a proposed divestiture within 120 days of the date the

application for such divestiture has been put on the public record, the

running of the divestiture period shall be tolled until the Commission

approves or disapproves the divestiture. In the event that the

Commission or the Attorney General brings an action pursuant to

Sec. 5(l) of the Federal Trade Commission Act, 15 U.S.C. Sec. 45(l), or

any other statute enforced by the Commission, TCI shall consent to the

appointment of a trustee in such action. Neither the appointment of a

trustee nor a decision not to appoint a trustee under this Paragraph

shall preclude the Commission or the Attorney General from seeking

civil penalties or any other relief available to it, including a court-

appointed trustee, pursuant to Sec. 5(l) of the Federal Trade

Commission Act, or any other statute enforced by the Commission, for

any failure by the respondent to comply with this order.

B. If a trustee is appointed by the Commission or a court pursuant

to Paragraph III A. of this order, [[Page 9849]] respondent shall

consent to the following terms and conditions regarding the trustee's

powers, duties, authority, and responsibilities:

1. The Commission shall select the trustee, subject to the consent

of respondent, which consent shall not be unreasonably withheld. The

trustee shall be a person with experience and expertise in acquisitions

and divestitures in the cable television industry. If respondent has

not opposed, in writing, including the reasons for opposing, the

selection of any proposed trustee within ten (10) days after notice by

the staff of the Commission to respondent of the identity of any

proposed trustee, respondent shall be deemed to have consented to the

selection of the proposed trustee.

2. Within ten (10) days after appointment of the trustee,

respondent shall (1) execute a trust agreement that, subject to the

prior approval of the Commission and, in the case of a court-appointed

trustee, of the court, transfers to the trustee all rights and powers

necessary to permit the trustee to effect the divestiture required by

this order; and (2) notify the trustee in writing whether TCI chooses

to divest the TCI Columbus Cable Television System or the TeleCable

Columbus Cable Television System; provided that if TCI fails to make

this designation within the specified time period, the trustee is

authorized to divest either the TCI or TeleCable Columbus Cable

Television System.

3. Subject to the prior approval of the Commission, the trustee

shall have the exclusive power and authority to divest the Designated

Columbus Cable Television System Assets.

4. The trustee shall have twelve (12) months from the date the

Commission approves the trust agreement described in Paragraph III B.

2. to accomplish the divestiture, which shall be subject to the prior

approval of the Commission. If, however, at the end of the twelve-month

period, the trustee has submitted a plan of divestiture or believes

that divestiture can be achieved within a reasonable time, the

divestiture period may be extended by the Commission, or, in the case

of a court-appointed trustee, by the court; provided, however, the

Commission may extend this period only two (2) times.

5. The trustee shall have full and complete access to the

personnel, books, records and facilities related to the Designated

Columbus Cable Television System Assets or to any other relevant

information as the trustee may reasonably request. Respondent shall

develop such financial or other information as such trustee may

reasonably request and shall cooperate with the trustee. Respondent

shall take no action to interfere with or impede the trustee's

accomplishment of the divestitures. Any delays in divestiture caused by

respondent shall extend the time for divestiture under this Paragraph

in an amount equal to the delay, as determined by the Commission or,

for a court-appointed trustee, by the court.

6. The trustee shall use his or her best efforts to negotiate the

most favorable price and terms available in each contract that is

submitted to the Commission, subject to respondent's absolute and

unconditional obligation to divest at no minimum price. The divestiture

shall be made in the manner and to the acquirer or acquirers as set out

in Paragraph II of this order; provided, however, if the trustee

receives bona fide offers from more than one acquiring entity, and if

the Commission determines to approve more than one such acquiring

entity, the trustee shall divest to the acquiring entity or entities

selected by respondent from among those approved by the Commission.

7. The trustee shall serve, without bond or other security, at the

cost and expense of respondent, on such reasonable and customary terms

and conditions as the Commission or a court may set. The trustee shall

have the authority to employ, at the cost and expense of respondent,

such consultants, accountants, attorneys, investment bankers, business

brokers, appraisers, and other representatives and assistants as are

necessary to carry out the trustee's duties and responsibilities. The

trustee shall account for all monies derived from the divestiture and

all expenses incurred. After approval by the Commission and, in the

case of a court-appointed trustee, by the court, of the account of the

trustee, including fees for his or her services, all remaining monies

shall be paid at the direction of the respondent, and the trustee's

power shall be terminated. The trustee's compensation shall be based at

least in significant part on a commission arrangement contingent on the

trustee's divesting the Designated Columbus Cable Television System

Assets.

8. Respondent shall indemnify the trustee and hold the trustee

harmless against any losses, claims, damages, liabilities, or expenses

arising out of, or in connection with, the performance of the trustee's

duties, including all reasonable fees of counsel and other expenses

incurred in connection with the preparation for, or defense of any

claim, whether or not resulting in any liability, except to the extent

that such liabilities, losses, damages, claims, or expenses result from

misfeasance, gross negligence, willful or wanton acts, or bad faith by

the trustee.

9. If the trustee ceases to act or fails to act diligently, a

substitute trustee shall be appointed in the same manner as provided in

Paragraph III A. of this order.

10. The Commission or, in the case of a court-appointed trustee,

the court, may on its own initiative or at the request of the trustee

issue such additional orders or directions as may be necessary or

appropriate to accomplish the divestiture required by this order.

11. The trustee shall have no obligation or authority to operate or

maintain the Designated Columbus Cable Television System Assets.

12. The trustee shall report in writing to respondent and the

Commission every sixty (60) days concerning the trustee's efforts to

accomplish divestiture.

IV

It is further ordered that respondent shall comply with all terms

of the Hold Separate Agreement, attached to this Order and made a part

hereof as Appendix I. The Hold Separate Agreement shall continue in

effect until such time as the Columbus Cable Television System Assets

shall have been divested as required by this order.

V

It is further ordered that, for a period of ten (10) years from the

date this order becomes final, respondent shall not, without the prior

approval of the Commission, directly or indirectly:

A. Acquire any stock, share capital, equity, or other interest in

any concern, corporate or non-corporate, engaged in at the time of such

acquisition, or within the two years preceding such acquisition engage

in Cable Television Service within the Relevant Geographic Area; or

B. Acquire any assets used for or previously used for (and still

suitable for use for) Cable Television Service within the Relevant

Geographic Area.

Provided, however, that this Paragraph V shall not apply to the

acquisition of products or services in the ordinary course of business;

and provided further, that this Paragraph V shall not apply to the

acquisition of any interest in a concern that is not at the time of the

acquisition engaged in Cable Television Service within the Relevant

Geographic Area due to the sale within the preceding two years of all

assets used for Cable Television Service within [[Page 9850]] the

Relevant Geographic Area to another party who intended to operate said

assets for Cable Television Service within the Relevant Geographic

Area.

VI

It is further ordered that:

A. Within sixty (60) days after the date this order becomes final

and every sixty (60) days thereafter until respondent has fully

complied with the provisions of Paragraphs II and III of this order,

respondent shall submit to the Commission a verified written report

setting forth in detail the manner and form in which it intends to

comply, is complying, and has complied with Paragraphs II and III of

this order. Respondent shall include in its compliance reports, among

other things that are required from time to time, a full description of

the efforts being made to comply with Paragraphs II and III of the

order, including a description of all substantive contacts or

negotiations for the divestiture and the identity of all parties

contacted. Respondent shall include in its compliance reports copies of

all written communications to and from such parties, all internal

memoranda, and all reports and recommendations concerning divestiture.

B. One (1) year from the date this order becomes final, annually

for the next nine (9) years on the anniversary of the date this order

becomes final, and at other times as the Commission may require,

respondent shall file a verified written report with the Commission

setting forth in detail the manner and form in which it has complied

and is complying with this order.

VII

It is further ordered that respondent shall notify the Commission

at least thirty (30) days prior to any proposed change in the

respondent such as dissolution, assignment, sale resulting in the

emergence of a successor corporation, or the creation or dissolution of

subsidiaries or any other change that affect compliance obligations

arising out of the order.

VIII

It is further ordered that, for the purpose of determining or

securing compliance with this order, and subject to any legally

recognized privilege, upon written request and on reasonable notice to

respondent, respondent shall permit any duly authorized representative

of the Commission:

A. Access, during office hours and in the presence of counsel, to

inspect and copy all books, ledgers, accounts, correspondence,

memoranda and other records and documents in the possession or under

the control of respondent relating to any matters contained in this

order; and

B. Upon five days' notice to respondent and without restraint of

interference from it, to interview officers, directors, or employees of

respondent, who may have counsel present, relating to any matters

contained in this order.

Agreement to Hold Separate

This Agreement To Hold Separate (``Agreement'') is by and between

Tele-Communications, Inc. (``respondent'' or ``TCI''), a corporation

organized, existing, and doing business under and by virtue of the laws

of the State of Delaware, with its principal office and place of

business at 5619 DTC Parkway, Englewood, Colorado 80111; and the

Federal Trade Commission (``Commission''), an independent agency of the

United States Government, established under the Federal Trade

Commission Act of 1914, 15 U.S.C. Sec. 41, et seq.

Whereas, respondent entered into an agreement with TeleCable

Corporation (``TeleCable''), a Virginia corporation, whereby respondent

will acquire the stock of TeleCable and merge TeleCable into TCI

Communications, Inc., an entity within TCI (hereinafter the

``Acquisition''); and

Whereas, the Commission is now investigating the Acquisition to

determine if it would violate any of the statutes enforced by the

Commission; and

Whereas, if the Commission accepts the attached Agreement

Containing Consent Order (``Consent Agreement''), which would require

the divestiture of either the TCI or TeleCable Cable Television System

Assets in Columbus, Georgia, the Commission must place the Consent

Agreement on the public record for a period of at least sixty (60) days

and may subsequently withdraw such acceptance pursuant to the

provisions of Section 2.34 of the Commission's Rules; and

Whereas, the Commission is concerned that if an understanding is

not reached, preserving the status quo ante of the TeleCable Columbus

Cable Television System Assets during the period prior to the final

acceptance and issuance of the Consent Agreement by the Commission

(after the 60-day public comment period), divestiture resulting from

any proceeding challenging the legality of the Acquisition might not be

possible, or might be less than an effective remedy; and

Whereas, the Commission is concerned that if the Acquisition is

consummated, it will be necessary to preserve the Commission's ability

to require the divestiture of the assets described in Paragraph II of

the Consent Agreement and the Commission's right to have the TeleCable

Columbus Cable Television System Assets continue as a viable

independent entity; and

Whereas, the purpose of this Agreement and the Consent Agreement is

to:

(i) preserve the TeleCable Columbus Cable Television System Assets

as a viable independent cable television system pending possible

divestiture, and

(ii) remedy any anticompetitive effects of the Acquisition; and

Whereas, respondent's entering into this Agreement shall in no way

be construed as an admission by respondent that the Acquisition is

illegal; and

Whereas, respondent understands that no act or transaction

contemplated by this Agreement shall be deemed immune or exempt from

the provisions of the antitrust laws or the Federal Trade Commission

Act by reason of anything contained in this Agreement.

Now, therefore, the parties agree, upon understanding that the

Commission has not yet determined whether the Acquisition will be

challenged, and in consideration of the Commission's agreement that,

unless the Commission determines to reject the Consent Agreement, it

will not seek further relief from respondent with respect to the

Acquisition, except that the Commission may exercise any and all rights

to enforce this Agreement and the Consent Agreement to which it is

annexed and made a part thereof, and in the event the required

divestiture is not accomplished, to appoint a trustee to seek

divestiture pursuant to the Consent Agreement and to seek civil

penalties or a court-appointed trustee or other equitable relief, as

follows:

1. Respondent agrees to execute and be bound by the attached

Consent Agreement.

2. Respondent agrees that from the date this Agreement is accepted

until the earliest of the dates listed in subparagraphs 2.a-2.b, it

will comply with the provisions of paragraph 3 of this Agreement:

a. three (3) business days after the Commission withdraws its

acceptance of the Consent Agreement pursuant to the provisions of

Section 2.34 of the Commission's Rules; or

b. the day after the divestiture required by the Consent Agreement

has been completed.

3. To ensure the independence and viability of the TeleCable

Columbus [[Page 9851]] Cable Television System Assets and to assure

that no competitive information is exchanged between the TeleCable

Columbus Cable Television System and the TCI Columbus Cable Television

System, TCI shall operate the TeleCable Columbus Cable Television

System separate and apart on the following terms and conditions:

a. To the maximum extent possible, TCI will retain current

TeleCable Columbus Cable Television System management and employees

(``the management team'') to manage and maintain the TeleCable Columbus

Cable Television System. The individuals on the management team shall

manage the TeleCable Columbus Cable Television System independently of

the management of TCI's other businesses, including the TCI Columbus

Cable Television System. The individuals on the management team shall

not be involved in any way in the operation or management of any other

TCI Cable Television System. If any member of the management team is

unable or unwilling to continue to serve in his or her current position

(or becomes unable to do so during the term of this Agreement) that

position will be filled by an individual not involved in any way in the

operation or management of any other TCI Cable Television System.

b. The management team, in its capacity as such, shall report

directly and exclusively to an individual to be designated by TCI who

has no direct responsibilities for Cable Television System operations

and who is competent to assure the continued viability and

competitiveness of the TeleCable Columbus Cable Television System

(``TCI Contact'').

c. TCI shall not exercise direction or control over, or influence

directly or indirectly the management team or any of its activities

relating to the operations of the TeleCable Columbus Cable Television

System; provided, however, that TCI may exercise such direction and

control over the management team and the TeleCable Columbus Cable

Television System Assets as is necessary to ensure compliance with this

Agreement and with the Consent Agreement and with all applicable laws.

d. TCI shall maintain the marketability, viability, and

competitiveness of the TeleCable Columbus Cable Television System

assets and shall not sell, transfer, encumber (other than in the

ordinary course of business), or otherwise impair their marketability,

viability or competitiveness.

e. Except for the TCI Contact and the management team, TCI shall

not permit any other TCI employee, officer, or director to be involved

in the management of the TeleCable Columbus Cable Television System;

provided, however, that TCI employees involved in engineering,

construction, customer service, data processing, training, human

resources, finance, legal services, tax, accounting, insurance,

internal audit, payroll, programming, purchasing, real estate, risk

management, telephony, compliance with FCC regulations, contract

administration, and similar services (``support service employees'')

may provide such services to the TeleCable Columbus Cable Television

System.

f. Except as required by law, and except to the extent that

necessary information is exchanged in the course of evaluating the

acquisition, defending investigations or litigation, or negotiating

agreements to divest, TCI, other than the TCI Contact, the management

team and support service employees involved in the TeleCable Columbus

Cable Television System business, shall not receive or have access to,

or the use of any material confidential information about the TeleCable

Columbus Cable Television System. (``Material Confidential

information,'' as used herein, means competitively sensitive or

proprietary information not otherwise known to TCI from sources other

than the TCI Contact, the management team involved in the TeleCable

Columbus Cable Television System, or the support service employees.)

g. The management team shall serve at the cost and expense of TCI.

TCI shall indemnify the management team against any losses or claims of

any kind that might arise out of his or her involvement under this

Agreement, except to the extent that such losses or claims result from

misfeasance, gross negligence, willful or wanton acts, or bad faith by

the management team.

h. If any member of the management team ceases to act or fails to

act diligently, a substitute member shall be appointed.

4. Should the Federal Trade Commission seek in any proceeding to

compel respondent to divest any of the Columbus Cable Television System

Assets, as provided in the Consent Agreement, or to seek any other

injunctive or equitable relief for any failure to comply with the

Consent Agreement or this Agreement, or in any way relating to the

Acquisition, as defined in the draft complaint, respondent shall not

raise any objection based upon the expiration of the applicable Hart-

Scott-Radino Antitrust Improvements Act waiting period or the fact that

the Commission has permitted the Acquisition. Respondent also waives

all rights to contest the validity of this Agreement.

5. To the extent that this Agreement requires respondent to take,

or prohibits respondent from taking, certain actions that otherwise may

be required or prohibited by contract, respondent shall abide by the

terms of this Agreement or the Consent Agreement and shall not assert

as a defense such contract requirements in any action brought by the

Commission to enforce the terms of this Agreement or Consent Agreement.

6. For the purpose of determining or securing compliance with this

Agreement, subject to any legally recognized privilege, and upon

written request with reasonable notice to respondent made to its

principal office, respondent shall permit any duly authorized

representative or representatives of the Commission:

a. Access during the office hours of respondent and in the presence

of counsel to inspect and copy all books, ledgers, accounts,

correspondence, memoranda, and other records and documents in the

possession or under the control of respondent relating to compliance

with this Agreement;

b. Upon five (5) days' notice to respondent, and without restraint

or interference from respondent, to interview officers or employees of

respondent, who may have counsel present, regarding any such matters.

7. This Agreement shall not be binding until approved by the

Commission.

Analysis to Aid Public Comment on the Provisionally Accepted Consent

Order

The Federal Trade Commission (``Commission'') has accepted for

public comment from Tele-Communications, Inc. (``TCI''), an agreement

containing consent order. This agreement has been placed on the public

record for sixty (60) days from receipt of comments from interested

persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and the comments received, and will decide whether it should

withdraw from the agreement or make final the agreement's order.

The Commission's investigation of this matter concerns TCI's

proposed acquisition of TeleCable Corporation (``TeleCable'').

TeleCable is the 18th largest cable company in the United States, and

operates 21 cable systems located in 15 states. The Commission's

investigation of this matter focused on the Columbus, Georgia,

metropolitan area. There are only three cable [[Page 9852]] television

providers in Columbus. TCI and TeleCable are the two largest cable

television providers in the Columbus area in terms of the number of

subscribers and the number of homes passed.

the agreement containing consent order would, if finally issued by

the Commission, settle charges alleged in the Commission's complaint

that TCI's acquisition of TeleCable would substantially lessen

competition in the distribution of multichannel video programming by

cable television in the Columbus, Georgia, area, in violation of

Section 7 of the Clayton Act. The nature of such competition to be

preserved is actual competition to serve existing homes, hotels, and

apartment complexes. The order will also preserve competition for

providing cable service to new housing developments and other presently

cabled portions of the Columbus area. The Commission's complaint

further alleges that TCI's merger agreement with TeleCable violates

Section 5 of the Federal Trade Commission Act.

The order accepted for public comment would require TCI to divest a

cable television system in the Columbus, Georgia, area. If TCI fails to

divest a system within one year, the order allows the Commission to

appointment a trustee to sell a cable system. A hold separate agreement

executed in conjunction with the consent agreement requires TCI, until

completion of the divestiture (or as otherwise specified), to maintain

TeleCable's Columbus cable system separate from TCI's other operations.

For ten (10) years from the date the order becomes final, the order

would also prohibit TCI, without obtaining prior Commission approval,

from acquiring any cable television system in the Columbus, Georgia,

area.

The purpose of this analysis is to invite public comment concerning

the consent order. This analysis is not intended to constitute an

official interpretation of the agreement and order or to modify their

terms in any way.

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 95-4280 Filed 2-21-95; 8:45 am]

BILLING CODE 6750-01-M