United States of America v. Westinghouse Electric Corporation and Infinity Broadcasting Corporation; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States of America v. Westinghouse Electric Corporation and

Infinity Broadcasting Corporation; Proposed Final Judgment and

Competitive Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final

Judgment, Stipulation, and Competitive Impact Statement have been filed

with the United States District Court for the District of Columbia in

United States v. Westinghouse Electric Corporation and Infinity

Broadcasting Corporation, Civil Action No. 96-02563. The proposed Final

Judgment is subject to approval by the Court after the expiration of

the statutory 60-day public comment period and compliance with the

Antitrust Procedures and Penalties Act. 15 U.S.C. Sec. 16(b)-(h).

The United States filed a civil antitrust Complaint on November 12,

1996, alleging that the proposed acquisition of the Infinity

Broadcasting Corporation (``Infinity'') by the Westinghouse Electric

Corporation (``Westinghouse'') would violate Section 7 of the Clayton

Act, 15 U.S.C. Sec. 18. The Complaint alleges that Westinghouse and

Infinity own and operate numerous radio stations throughout the United

States, and that they each own and operate stations in the

Philadelphia, Pennsylvania and Boston, Massachusetts metropolitan

areas. This acquisition would give Westinghouse control over more than

40 percent of the radio advertising revenues in those metropolitan

areas, as well as a substantial amount of control over access to

certain demographic groups of radio listeners targeted by advertisers

in those metropolitan areas. As a result, the combination of these

companies would substantially lessen competition in the sale of radio

advertising time in the Philadelphia and Boston metropolitan areas.

The prayer for relief seeks: (a) Adjudication that Westinghouse's

proposed acquisition of Infinity would violate Section 7 of the Clayton

Act; (b) preliminary and permanent injunctive relief preventing the

consummation of the proposed acquisition; (c) an award to the United

States of the costs of this action; and (d) such other relief as is

proper.

Shortly before this suit was filed, a proposed settlement was

reached that permits Westinghouse to complete its acquisition of

Infinity, yet preserves competition in the markets in which the

transaction would raise significant competitive concerns. A Stipulation

and proposed Final Judgment embodying the settlement were filed with

the Court at the same time the Complaint was filed.

The proposed Final Judgment orders Westinghouse to divest WMMR-FM,

currently owned by Westinghouse, and WBOS-FM, currently owned by

Infinity, in Philadelphia and Boston, respectively. Unless the United

States grants an extension of time, Westinghouse must divest these

radio stations within six months after the filing of the Final

Judgment, or within five (5) business days after notice of entry of the

Final Judgment, whichever is later. If Westinghouse does not divest

these stations within the divestiture period, the Court may appoint a

trustee to sell the assets. The proposed Final Judgment also requires

the defendants to ensure that, until the divestitures mandated by the

Final Judgment have been accomplished, WMMR-FM and WBOS-FM will be

operated independently as viable, ongoing businesses, and kept separate

and apart from Westinghouse's and Infinity's other Philadelphia and

Boston radio stations, respectively. Further, the proposed Final

Judgment requires the defendants to give plaintiff prior notice

regarding future radio station acquisitions and future Joint Sales

Agreements, Local Marketing Agreements or comparable arrangements in

Philadelphia and Boston.

A Competitive Impact Statement filed by the United States describes

the Complaint, the proposed Final Judgment, and remedies available to

private litigants.

Public comment is invited within the statutory 60-day comment

period. Such comments, and the responses thereto, will be published in

the Federal Register and filed with the Court. Written comments should

be directed to Craig W. Conrath, Chief, Merger Task Force, Antitrust

Division, 1401 H Street, NW, Suite 4000, Washington, D.C. 20530

(telephone: 202-307-0001). Copies of the Complaint, Stipulation,

proposed Final Judgment and Competitive Impact Statement are available

for inspection in Room 215 of the Antitrust Division, Department of

Justice, 325 7th St., NW, Washington, D.C. 20530 (telephone: 202-514-

2481), and at the office of the Clerk of the United States District

Court for the District of Columbia, Third Street and Constitution

Avenue, NW, Washington, D.C. 20001.

Copies of any of these materials may be obtained upon request and

payment of a copying fee.

Constance K. Robinson,

Director of Operation, Antitrust Division.

Stipulation and Order

It is stipulated by and between the undersigned parties, by their

respective attorneys, as follows:

(1) The Court has jurisdiction over the subject matter of this

action and over each of the parties hereto, and venue of this action is

proper in the United States District Court for the District of

Columbia.

(2) The defendants have agreed to waive the requirements of Fed. R.

Civ. P. 4 and to accept service of the Complaint herein by first class

mail, addressed to their undersigned counsel of record.

available to it as a result of such delay, provided that: (i)

Defendants have entered into one or more definitive agreements to

divest the WMMR-FM Assets and the WBOS-FM Assets, as defined in the

Final Judgment, and such agreements and the Acquirer or Acquires have

been approved by plaintiff; (ii) All papers necessary to secure any

governmental approvals and/or rulings to effectuate such divestitures

(including but not limited to FCC, SEC and IRS approvals or rulings)

have been filed with the appropriate agency; (iii) Receipt of such

approvals are the only

[[Page 63862]]

closing conditions that have not been satisfied or waived; and (iv)

Defendants have demonstrated that neither they nor the prospective

Acquirer or Acquirers are responsible for any such delay.

(6) In the event the United States withdraws its consent, as

provided in paragraph 3 above, or if the proposed Final Judgment is not

entered, this Stipulation shall be of no effect whatever, and the

making of this Stipulation shall be without prejudice to any party in

this or any other proceeding.

(7) The defendants represent that the divestitures ordered in the

proposed Final Judgment can and will be made, and that the defendants

will later raise no claims of hardship or difficulty as grounds for

asking the Court to modify any of the divestiture provisions contained

therein.

Dated: November 12, 1996.

For Plaintiff United States of America:

Dando B. Cellini,

U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401

H Street, N.W., Suite 4000, Washington, D.C. 20005, (202) 307-0829.

For Defendant Westinghouse Electric Corporation:

Joe Sims,

Jones, Day, Reavis & Pogue, 1450 G Street, N.W., Washington, D.C.

20005, (202) 879-3939.

For Defendant Infinity Broadcasting Corporation:

Daniel M. Abuhoff,

Debevoise & Plimpton, 875 Third Avenue, New York, NY 10022, (212) 909-

6000.

So Ordered:

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United States District Judge

Certificate of Service

I, Dando B. Cellini, hereby certify that, on November 12, 1996,

I caused the foregoing document to be served on defendants

Westinghouse Electric Corporation and Infinity Broadcasting

Corporation by having a copy mailed, first-class, postage prepaid,

to:

Joe Sims, Jones, Day, Reavis & Pogue, 1450 G St., N.W., Washington,

D.C. 20005, Counsel for Westinghouse Electric Corporation

Daniel M. Abuhoff, Debevoise & Plimpton, 875 Third Avenue, New York, NY

10022, Counsel for Infinity Broadcasting Corporation

Dando B. Cellini.

Whereas, plaintiff, the United States of America, having filed its

Complaint herein on November 12, 1996, and defendants, by their

respective attorneys, having consented to the entry of this Final

Judgment without trial or adjudication of any issue of fact or law

herein, and without this Final Judgment constituting any evidence

against or an admission by any party with respect to any issue of law

or fact herein;

And whereas, defendants have agreed to be bound by the provisions

of this Final Judgment pending its approval by the Court;

And whereas, the purpose of this Final Judgment is prompt and

certain divestiture of certain assets to assure that competition is not

substantially lessened;

And whereas, plaintiff requires defendants to make certain

divestitures for the purpose of remedying the loss of competition

alleged in the Complaint:

And whereas, defendants have represented to plaintiff that the

divestitures ordered herein can and will be made and that defendants

will later raise no claims of hardship or difficulty as grounds for

asking the Court to modify any of the divestiture provisions contained

below;

Now, therefore, before the taking of any testimony, and without

trial or adjudication of any issue of fact or law herein, and upon

consent of the parties hereto, it is hereby ordered, adjudged, and

decreed as follows:

I. Jurisdiction

This Court has jurisdiction over each of the parties hereto and

over the subject matter of this action. The Complaint states a claim

upon which relief may be granted against defendants Westinghouse and

Infinity, as hereinafter defined, under Section 7 of the Clayton Act,

as amended (15 U.S.C. Sec. 18).

II. Definitions

As used in this Final Judgment:

A. ``Westinghouse'' means defendant Westinghouse Electric

Corporation, a Pennsylvania corporation with its headquarters in

Pittsburgh, Pennsylvania, and includes its successors and assigns, its

subsidiaries (including CBS Inc.), and directors, officers, managers,

agents and employees acting for or on behalf of Westinghouse.

B. ``Infinity'' means defendant Infinity Broadcasting Corporation,

a Delaware corporation with its headquarters in New York, New York, and

includes its successors and assigns, its subsidiaries, and directors,

officers, managers, agents and employees acting for or on behalf of

Infinity.

C. ``WMMR-FM Assets'' means all of the assets, tangible or

intangible, used in the operation of the WMMR 93.3 FM radio station in

Philadelphia, Pennsylvania, including but not limited to: all real

property (owned and leased) used in the operation of that station; all

broadcast equipment, personal property, inventory, office furniture,

fixed assets and fixtures, materials, supplies and other tangible

property used in the operation of that station; all licenses, permits

and authorizations and applications therefor issued by the Federal

Communications Commission (``FCC'') and other governmental agencies

relating to that station; all contracts, agreements, leases and

commitments of Westinghouse pertaining to that station and its

operations; all trademarks, service marks, trade names, copyrights,

patents, slogans, programming materials and promotional materials

relating to that station; and all logs and other records maintained by

Westinghouse or that station in connection with its business. The WMMR-

FM Assets do not include any trademarks, service marks, trade names,

copyrights, patents, slogans, programming materials and promotional

materials created by Westinghouse, or its subsidiary CBS Inc., and used

by other radio stations, not solely by WMMR-FM. For all assets used

jointly by WMMR and KYW-AM or KYW TV prior to the divestiture required

by this Final Judgment, defendants shall propose to the plaintiff,

within 90 days of the filing of this Final Judgment, a plan for

dividing such assets in a way that, in plaintiff's sole discretion,

does not impair WMMR's ability to attract potential acquirers. Upon

approval of the plan by plaintiff, the term ``WMMR-FM Assets'' shall

include only those assets allocated under the plan to WMMR.

D. ``WBOS-FM Assets'' means all of the assets, tangible or

intangible, used in the operation of the WBOS 92.9 FM radio station in

Boston, Massachusetts, including but not limited to: all real property

(owned and leased) used in the operation of that station; all broadcast

equipment, personal property, inventory, office furniture, fixed assets

and fixtures, materials, supplies and other tangible property used in

the operation of that station; all licenses, permits and authorizations

and applications therefor issued by the Federal Communications

Commission (``FCC'') and other governmental agencies relating to that

station; all contracts, agreements, leases and commitments of Infinity

pertaining to that station and its operations; all trademarks, service

marks, trade names, copyrights, patents, slogans, programming materials

and promotional materials relating to that station; and all logs and

other records maintained by Infinity or that station in connection with

its business. For all assets used

[[Page 63863]]

jointly by WBOS and WOAZ-FM prior to the divestiture required by this

Final Judgment, defendants shall propose to plaintiff, within 90 days

of the filing of this Final Judgment, a plan for dividing such assets

in a way that, in the sole discretion of plaintiff, does not impair

WBOS's ability to attract potential acquirers. Upon approval of the

plan by plaintiff, the term ``WBOS-FM Assets'' shall include only those

assets allocated under the plan to WBOS.

E. ``Philadelphia Area'' means the Philadelphia, Pennsylvania Metro

Survey Area as identified by The Arbitron Radio Market Report for

Philadelphia (Summer 1996), which is made up of the following eight

counties: Bucks, Montgomery, Chester, Philadelphia, Delaware,

Burlington, Camden and Gloucester.

F. ``Boston Area'' means the Boston, Massachusetts Metro Survey

Area as identified by The Arbitron Radio Market Report for Boston

(Summer 1996), which is made up of the following five counties: Essex,

Middlesex, Suffolk, Norfolk and Plymouth.

G. ``Westinghouse Radio Station'' means any radio station owned by

Westinghouse or Infinity and licensed to a community in either the

Philadelphia Area or the Boston Area, other than WMMR-FM in the

Philadelphia Area and WBOS-FM in the Boston Area.

H. ``Non-Westinghouse Radio Station'' means any radio station

licensed to a community in either the Philadelphia Area or the Boston

Area that is not a Westinghouse Radio Station.

I. ``Acquirer'' means the entity or entities to whom defendants

divest the WMMR-FM Assets and/or the WBOS-FM Assets under this Final

Judgment.

III. Applicability

A. The provisions of this Final Judgment apply to each of the

defendants, their successors and assigns, their subsidiaries,

affiliates, directors, officers, managers, agents and employees, and

all other persons in active concert or participation with any of them

who shall have received actual notice of this Final Judgment by

personal service or otherwise.

B. Each defendant shall require, as a condition of the sale or

other disposition of all or substantially all of the assets used in its

business of owning and operating its portfolio of radio stations in

either the Philadelphia Area or the Boston Area, that the acquiring

party or parties agree to be bound by the provisions of this Final

Judgment; provided, however, that defendants need not obtain such an

agreement from an Acquirer, as defined herein.

IV. Divestiture of WMMR-FM and WBOS-FM

A. Defendants are hereby ordered and directed, in accordance with

the terms of this Final Judgment, within six (6) months after the

filing of this Final Judgment, or within five (5) business days after

notice of entry of this Final Judgment, whichever is later, to divest

the WMMR-FM Assets and the WBOS-FM Assets to one or two Acquirers

acceptable to plaintiff, in its sole discretion. Unless plaintiff

otherwise consents in writing, the divestitures pursuant to Section IV

of this Final Judgment, or by the trustee appointed pursuant to Section

V, shall be accomplished in such a way as to satisfy plaintiff, in its

sole discretion, that the WMMR-FM Assets and the WBOS-FM Assets can and

will be used by an Acquirer or Acquirers as viable, ongoing commercial

radio businesses. The divestitures, whether pursuant to Section IV or V

of this Final Judgment, shall be made (i) to an Acquirer or Acquirers

that, in plaintiff's sole judgment, has or have the capability and

intent of competing effectively, and has or have the managerial,

operational and financial capability to compete effectively as radio

station operators in the Philadelphia Area and the Boston Area; and

(ii) pursuant to agreements the terms of which shall not, in the sole

judgment of plaintiff, interfere with the ability of the purchaser(s)

to compete effectively.

B. Defendants agree to use their best efforts to divest the WMAR-FM

Assets and the WBOS-FM Assets, and to obtain all regulatory approvals

necessary for such divestitures, as expeditiously as possible.

Plaintiff, in its sole discretion, may extend the time period for the

divestitures for two (2) additional thirty (30) day periods of time,

not to exceed sixty (60) calendar days in total.

C. In accomplishing the divestitures ordered by this Final

Judgment, defendants promptly shall make known, by usual and customary

means, the availability for sale of the WMMR-FM Assets and the WBOS-FM

Assets. Defendants shall inform any person making a bona fide inquiry

regarding a possible purchase that the sale is being made pursuant to

this Final Judgment and provide such person with a copy of the Final

Judgment. Defendants shall make known to any person making an inquiry

regarding a possible purchase of the WMMR-FM Assets and/or the WBOS-FM

Assets that the assets described in Section II (C) and (D) are being

offered for sale and that the WMMR-FM Assets and the WBOS-FM Assets may

be purchased as a two-station package or sold separately to different

purchasers. Defendants shall also offer to furnish to all bona fide

prospective purchasers, subject to customary confidentiality

assurances, all information regarding the WMMR-FM Assets and the WBOS-

FM Assets customarily provided in a due diligence process, except such

information that is subject to attorney-client privilege or attorney

work-product privilege. Defendants shall make available such

information to plaintiff at the same time that such information is made

available to any other person.

D. Defendants shall permit bona fide prospective purchasers of the

WMMR-FM Assets and/or the WBOS-FM Assets to have access to personnel

and to make such inspection of the assets, and any and all financial,

operational or other documents and information customarily provided as

part of a due diligence process.

E. Defendants shall not interfere with any efforts by any Acquirer

or Acquirers to employ the general manager or any employee of WMMR-FM

or WBOS-FM.

V. Appointment of Trustee

A. In the event that defendants have not divested the WMMR-FM

Assets and the WBOS-FM Assets within the time periods specified in

Section IV above, the Court shall appoint, on application of plaintiff,

a trustee selected by plaintiff to effect the divestiture of the

assets.

B. After the trustee's appointment has become effective, only the

trustee shall have the right to sell the WMMR-FM Assets and the WBOS-FM

Assets. The trustee shall have the power and authority to accomplish

the divestitures at the best price then obtainable upon a reasonable

effort by the trustee, subject to the provisions of Section V and VII

of this Final Judgment and consistent with FCC regulations, and shall

have other powers as the Court shall deem appropriate. Subject to

Section V (C) of this Final Judgment, the trustee shall have the power

and authority to hire at the cost and expense of defendants any

investment bankers, attorneys or other agents reasonably necessary in

the judgment of the trustee to assist in the divestitures, and such

professionals or agents shall be solely accountable to the trustee. The

trustee shall have the power and authority to accomplish the

divestitures at the earliest possible time to a purchaser acceptable to

plaintiff, in its sole judgment, and shall have such other powers as

this Court shall deem appropriate. Defendants shall not object to the

sale of the WMMR-FM and/or the WBOS-FM Assets by the trustee on any

[[Page 63864]]

grounds other than the trustee's malfeasance. Any such objection by

defendants must be conveyed in writing to plaintiff and the trustee no

later than fifteen (15) calendar days after the trustee has provided

the notice required under Section VIII of this Final Judgment.

C. The trustee shall serve at the cost and expense of defendants,

on such terms and conditions as the Court may prescribe, and shall

account for all monies derived from the sale of the assets sold by the

trustee and all costs and expenses so incurred. After approval by the

Court of the trustee's accounting, including fees for its services and

those of any professionals and agents retained by the trustee, all

remaining monies shall be paid to defendants and the trustee's services

shall then be terminated. The compensation of such trustee and of any

professionals and agents retained by the trustee shall be reasonable in

light of the value of the divestiture and based on a fee arrangement

providing the trustee with an incentive based on the price and terms of

the divestitures and the speed with which they are accomplished.

D. Defendants shall take no action to interfere with or impede the

trustee's accomplishment of the divestiture of the WMMR-FM Assets and

the WBOS-FM Assets, and shall use their best efforts to assist the

trustee in accomplishing the required divestitures, including best

efforts to effect all necessary regulatory approvals. Subject to a

customary confidentiality agreement, the trustee shall have full and

complete access to the personnel, books, records and facilities related

to the WMMR-FM Asssets and the WBOS-FM Assets, and defendants shall

develop such financial or other information as may be necessary to the

divestiture of the WMMR-FM Assets and WBOS-FM Assets. Defendants shall

permit prospective purchasers of the WMMR-FM Assets and WBOS-FM Assets

to have access to personnel and to make such inspection of physical

facilities and any and all financial, operational or other documents

and information as may be relevant to the divestitures required by this

Final Judgment.

E. After its appointment becomes effective, the trustee shall file

monthly reports with defendants, plaintiff and the Court, setting forth

the trustee's efforts to accomplish divestiture of the WMMR-FM Assets

and WBOS-FM Assets as contemplated under this Final Judgment; provided,

however, that to the extent such reports contain information that the

trustee deems confidential, such reports shall not be filed in the

public docket of the Court. Such reports shall include the name,

address and telephone number of each person who, during the preceding

month, made an offer to acquire, expressed an interest in acquiring,

entered into negotiations to acquire, or was contacted or made an

inquiry about acquiring, any interest in the WMMR-FM Assets and WBOS-FM

Assets, and shall describe in detail each contact with any such person

during that period. The trustee shall maintain full records of all

efforts made to divest these operations.

F. Within six (6) months after its appointment has become

effective, if the trustee has not accomplished the divestiture required

by Section IV of this Final Judgment, the trustee shall promptly file

with the Court a report setting forth (1) the trustee's efforts to

accomplish the required divestiture, (2) the reasons, in the trustee's

judgment, why the required divestitures have not been accomplished, and

(3) the trustee's recommendations; provided, however, that to the

extent such reports contain information that the trustee deems

confidential, such reports shall not be filed in the public docket of

the Court. The trustee shall at the same time furnish such reports to

defendants and plaintiff, who shall each have the right to be heard and

to make additional recommendations. The Court shall thereafter enter

such orders as it shall deem appropriate to accomplish the purpose of

this Final Judgment, which shall, if necessary, include extending the

term of the trustee's appointment.

VI. Preservation of Assets/Hold Separate

Until the divestiture of the WMMR-FM Assets and the WBOS-FM Assets

required by Section IV of the Final Judgment has been accomplished:

A. Defendants shall take all steps necessary to ensure that WMMR-FM

is maintained as a separate, independent, ongoing, economically viable

and active competitor to defendants' other stations in Philadelphia and

that, except as necessary to comply with Section IV and paragraphs C

through F of this Section of the Final Judgment, the management of said

station, including the performance of decision-making functions

regarding marketing and pricing, will be kept separate and apart from,

and not influenced by, defendants.

B. Defendants shall take all steps necessary to ensure that WBOS-FM

is maintained as a separate, independent, ongoing, economically viable

and active competitor to defendants' other stations in Boston and that,

except as necessary to comply with Section IV and paragraphs C through

F of this Section of the Final Judgment, the management of said

station, including the performance of decision-making functions

regarding marketing and pricing, will be kept separate and apart from,

and not influenced by, defendants.

C. Defendants shall use all reasonable efforts to maintain and

increase sales of advertising time by WMMR-FM, and shall maintain at

1995 or previously approved levels for 1996, whichever are higher,

promotional advertising, sales, marketing and merchandising support for

said station.

D. Defendants shall use all reasonable efforts to maintain and

increase sales of advertising time by WBOS-FM, and shall maintain at

1995 or previously approved levels for 1996, whichever are higher,

promotional advertising, sales, marketing and merchandising support for

said station.

E. Defendants shall take all steps necessary to ensure that the

assets used in the operation of WMMR-FM are fully maintained. WMMR-FM's

sales and marketing employees shall not be transferred or reassigned to

any other station except for transfer bids initiated by employees

pursuant to defendants' regular established job posting polices,

provided that defendants give plaintiff and Acquirer ten (10) days'

notice of any such transfer.

F. Defendants shall take all steps necessary to ensure that the

assets used in the operation of WBOS-FM are fully maintained. WBOS-FM's

sales and marketing employees shall not be transferred or reassigned to

any other station, except for transfer bids initiated by employees

pursuant to defendants' regular, established job posting polices,

provided that defendants give plaintiff and Acquirer ten (10) days'

notice of any such transfer.

G. Defendants shall not, except as part of a divestiture approved

by plaintiff, sell any WMMR-FM Assets or WBOS-FM Assets.

H. Defendants shall take no action that would jeopardize the sale

of the WMMR-FM Assets or the WBOS-FM Assets.

I. Defendants shall each appoint a person or persons to oversee the

assets to be held separate and who will be responsible for defendants'

compliance with Section VI of this Final Judgment.

Within two (2) business days following execution of a binding

agreement to divest, including all contemplated ancillary agreement

(e.g., financing), to effect in whole or in part, any proposed

divestiture pursuant to Section IV or V of this Final Judgment,

[[Page 63865]]

defendants or the trustee, whichever is then responsible for effecting

the divestiture, shall notify plaintiff of the proposed divestiture. If

the trustee is responsible, it shall similarly notify defendants. The

notice shall set forth the details of the proposed transaction and list

the name, address and telephone number of each person not previously

identified who offered to, or expressed an interest in or a desire to,

acquire any ownership interest in the WMMR-FM Assets or the WBOS-FM

Assets, together with full details of same. Within fifteen (15)

calendar days of receipt by plaintiff of such notice, plaintiff may

request from defendants, the proposed purchaser or purchasers, any

other third party, or the trustee, if applicable, additional

information concerning the proposed divestiture, the proposed

purchaser, and any other potential purchaser. Defendants and the

trustee shall furnish any additional information requested within

fifteen (15) calendar days of the receipt of the request. Within thirty

(30) calendar days after receipt of the notice or within twenty (20)

calendar days after plaintiff has been provided the additional

information, whichever is later, plaintiff shall provide written notice

of defendants and the trustee, if there is one, stating whether or not

it objects to the proposed divestiture. If plaintiff fails to object

within the period specified, or if plaintiff provides written notice to

defendants and the trustee, if there is one, that it does not object,

then the divestiture may be consummated, subject only to defendants'

limited right to object to the sale under Section V(B) of this Final

Judgment. A divestiture proposed under Section IV shall not be

consummated if plaintiff objects to the identity of the proposed

purchaser or purchasers. Upon objection by plaintiff, or by defendants

under the proviso in Section V(B), a divestiture proposed under Section

V shall not be consummated unless approved by the Court.

VIII. Financing

Defendants are ordered and directed not to finance all or any part

of any purchase by an Acquirer made pursuant to Sections IV or V of

this Final Judgment without the prior written consent of plaintiff.

IX. Affidavits

A. Within twenty (20) calendar days of the filing of this Final

Judgment and every thirty (30) calendar days thereafter until the

divestiture has been completed, whether pursuant to Section IV or

Section V of this Final Judgment, Defendants shall deliver to plaintiff

an affidavit as to the fact and manner of their compliance with Section

IV or V of this Final Judgment. Each such affidavit shall include,

inter alia, the name, address and telephone number of each person who,

at any time after the period covered by the last such report, was

contacted by defendants, or their representatives, made an offer to

acquire, expressed an interest in acquiring, entered into negotiations

to acquire, or made an inquiry about acquiring, any interest in the

WMMR-FM Assets and/or the WBOS-FM Assets, and shall describe in detail

each contact with any such person during that period. Each such

affidavit shall also include a description of the efforts that

defendants have taken to solicit a buyer or buyers for the WMMR-FM

Assets and the WBOS-FM Assets.

B. Within twenty (20) calendar days of the filing of this Final

Judgment, defendants shall deliver plaintiff an affidavit which

describes in reasonable detail all actions defendants have taken and

all steps defendants have implemented on an on-going basis to preserve

WMMR-FM and WBOS-FM pursuant to Section IV of this Final Judgment.

Defendants shall deliver to plaintiff an affidavit describing any

changes to the efforts and actions outlined in their earlier

affidavit(s) filed pursuant to this Section within fifteen (15)

calendar days after such change is implemented.

C. Defendants shall preserve all records of all efforts made to

preserve WMMR-FM and WBOS-FM and to divest the WMMR-FM Assets and the

WBOS-FM Assets.

X. Notice

A. Unless such transaction is otherwise subject to the reporting an

waiting period requirements of the Hart-Scott-Antitrust Improvements

Act of 1976, as amended, 15 U.S.C. Sec. 18a (the ``HSR Act''),

defendants, without providing advance notification to the United States

Department of Justice, shall not directly or indirectly:

(1) acquire any assets of or any interest, including any financial,

security, loan, equity or management interest, in any Non-Westinghouse

Radio Station or any person affiliated with any such Station; provided,

however, that defendants need not provide notice under this provision

for any direct or indirect acquisition of equity of a Non-Westinghouse

Radio Station that would result in defendants' holding no more than

five percent of the total equity of the station; or

(2) enter into any Joint Sales Agreements, Local Marketing

Agreements or comparable arrangement with any Non-Westinghouse Radio

Station.

Notification shall be provided to the United States Department of

Justice in the same format as, and per the instructions relating to the

Notification and Report Form set forth in the Appendix to Part 803 of

Title 16 of the Code of Federal Regulations as amended, except that the

information requested in Items 5-9 of the instructions must be provided

only with respects to Westinghouse Radio Stations in the city

implicated by the transaction giving rise to the notification

obligation under this Section X. Notification shall be provided at

least thirty (30) days prior to acquiring any such interest covered in

(1) or (2) above, and shall include, beyond what may be required by the

applicable instructions, the names of the principal representatives of

the parties to the agreements who negotiated the agreement, and any

management or strategic plans discussing the propose transaction. If

within the 30-days period after notification, representatives of the

Department make a written request for additional information,

defendants shall not consummate the proposed transaction or agreement

until twenty (20) days after submitting all such additional

information. Early termination of the waiting periods in this paragraph

may be requested and, where appropriate, granted in the same manner as

is applicable under the requirements and provisions of the HSR Act and

rules promulgated thereunder.

B. This Section shall be broadly construed and any ambiguity or

uncertainty regarding the filing of notice under this Section shall be

resolved in favor of filing notice.

XI. Compliance Inspection

For the purpose of determining of securing compliance with the

Final Judgment and subject to any legally recognized privilege, from

time to time:

A. Duly authorized representatives of the plaintiff, including

consultants and other persons retained by the plaintiff, shall, upon

written request of the United States Attorney General, or of the

Assistant Attorney General in charge of the Antitrust Division, and on

reasonable notice to defendants made to the principal offices, be

permitted:

(1) Access during office hours of defendants to inspect and copy

all books, ledgers, accounts, correspondence, memoranda and other

records and documents in the possession or under the control of

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

contained in this Final Judgment; and

[[Page 63866]]

(2) Subject to the reasonable convenience of defendants and without

restraint or interference from them, to interview directors, officers,

employees and agents of defendants, who may have counsel present,

regarding any such matters.

B. Upon the written request of the United States Attorney General,

or of the Assistant Attorney General in charge of the Antitrust

Division, made to defendants' principal offices, defendants shall

submit such written reports, under oath if requested, with respect to

any of the matters contained in this Final Judgment as may be

requested.

C. No information or documents obtained by the means provided in

this Section XI shall be divulged by any representative of plaintiff to

any person other than a duly authorized representative of the Executive

Branch of the United States, except in the course of legal proceedings

to which plaintiff is a party (including grand jury proceedings), or

for the purpose of securing compliance with this Final Judgment, or as

otherwise required by law.

D. If at the time information or documents are furnished by either

defendant to plaintiff, and such 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)(7) of the Federal

Rules of Civil Procedure, and such defendant marks each pertinent page

of such material, ``Subject to claim of protection under Rule 26(c)(7)

of the Federal Rules of Civil Procedure,'' then ten (10) calendar days'

notice shall be given by plaintiff to such defendant prior to divulging

such material in any legal proceeding (other than a grand jury

proceeding) to which such defendant is not a party.

XII. Retention of Jurisdiction

Jurisdiction is retained by this Court at any time for such further

orders and directions as may be necessary or appropriate for the

construction, implementation or modification of any provisions of this

Final Judgment, for the enforcement of compliance herewith, and for the

punishment of any violation hereof.

XIII. Termination

Unless this Court grants an extension, this Final Judgment will

expire upon the tenth anniversary of the date of its entry.

XIV. Public Interest

Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

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United States District Judge

COMPETITIVE IMPACT STATEMENT

Plaintiff, the United States of America, pursuant to Section 2(b)

of the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C.

Sec. 16(b)-(h), files this Competitive Impact Statement relating to the

proposed Final Judgment submitted for entry in this civil antitrust

proceeding.

I. Nature and Purpose of the Proceeding

Plaintiff filed a civil antitrust Complaint on November 12, 1996,

alleging that the proposed acquisition of the Infinity Broadcasting

Corporation (``Infinity'') by the Westinghouse Electric Corporation

(``Westinghouse'') would violate Section 7 of the Clayton Act, 15

U.S.C. Sec. 18. The Complaint alleges that Westinghouse and Infinity

own and operate numerous radio stations throughout the United States,

and that they each own and operate radio stations in the Philadelphia,

Pennsylvania and Boston, Massachusetts metropolitan areas. This

acquisition would give Westinghouse control over more than 40 percent

of the radio advertising revenues in those metropolitan areas, as well

as a substantial amount of control over access to certain demographic

groups of radio listeners targeted by advertisers in those metropolitan

areas. As a result, the combination of these companies would

substantially lessen competition in the sale of radio advertising time

in the Philadelphia and Boston metropolitan areas.

The prayer for relief seeks: (a) adjudication that Westinghouse's

proposed acquisition of Infinity would violate Section 7 of the Clayton

Act; (b) preliminary and permanent injunctive relief preventing the

consummation of the proposed acquisition; (c) an award to the United

States of the costs of this action; and (d) such other relief as is

proper.

Shortly before this suit was filed, a proposed settlement was

reached that permits Westinghouse to complete its acquisition of

Infinity, yet preserves competition in the markets in which the

transaction would raise significant competitive concerns. A Stipulation

and proposed Final Judgment embodying the settlement were filed with

the Court at the same time the Complaint was filed.

The proposed Final Judgment orders Westinghouse to divest WMMR-FM,

currently owned by Westinghouse, and WBOS-FM, currently owned by

Infinity, in Philadelphia and Boston, respectively. Unless the United

States grants an extension of time, Westinghouse must divest these

radio stations within six months after the filing of the Final

Judgment, or within five (5) business days after notice of entry of the

Final Judgment, whichever is later. If Westinghouse does not divest

these stations within the divestiture period, the Court may appoint a

trustee to sell the assets. The proposed Final Judgment also requires

the defendants to ensure that, until the divestitures mandated by the

Final Judgment have been accomplished, WMMR-FM and WBOS-FM will be

operated independently as viable, ongoing businesses, and kept separate

and apart from Westinghouse's and Infinity's other Philadelphia and

Boston radio stations, respectively. Further, the proposed Final

Judgment requires the defendants to give plaintiff prior notice

regarding future radio station acquisitions in Philadelphia and Boston.

The plaintiff and the defendants have stipulated that the proposed

Final Judgment may be entered after compliance with the APPA. Entry of

the proposed Final Judgment would terminate this action, except that

the Court would retain jurisdiction to construe, modify or enforce the

provisions of the proposed Final Judgment and to punish violations

thereof.

II. The Alleged Violation

A. The Defendants

Westinghouse is a Pennsylvania corporation headquartered in

Pittsburgh, Pennsylvania. It currently owns, through its subsidiary CBS

Inc., 41 radio stations in 13 metropolitan areas across the United

States, including four located in the Philadelphia metropolitan area

and two located in the Boston metropolitan area. Westinghouse's four

radio stations in the Philadelphia area are KYW-AM, WMMR-FM, WOGL-FM

and WPHT-AM; its two radio stations in the Boston area are WBZ-AM and

WODS-FM. In 1995, its revenues from its Philadelphia stations were

appropriately $55,300,000, and its revenues from its Boston stations

were approximately $26,600,000.

Infinity is a Delaware corporation headquartered in New York, New

York. Infinity owns 42 radio stations in 13 metropolitan areas across

the United States, including two located in the Philadelphia

metropolitan area and four

[[Page 63867]]

located in the Boston metropolitan area. Infinity's two radio stations

in the Philadelphia area are WYSP-FM and WIP-AM; its four stations in

the Boston area are WBCN-FM, WZLA-FM, WBOS-FM and WOAZ-FM. In 1995, its

revenues from its Philadelphia stations were approximately $31,500,000,

and its revenues from the Boston stations were approximately

$46,000,000.

B. Description of the Events Giving Rise to the Alleged Violation

On June 20, 1996, Westinghouse agreed to purchase Infinity for

approximately $4.9 billion. As is more fully discussed below,

Westinghouse would control more than 40 percent of the radio

advertising revenues in Philadelphia and in Boston, and could exercise

substantial control over access to certain target audiences sought by

advertisers in those metropolitan areas. The proposed acquisition by

Westinghouse of Infinity, and the threatened loss of competition that

would be caused thereby, precipitated the Government's suit.

C. Anticompetitive Consequences of the Proposed Merger

1. Sale of Radio Advertising Time in the Philadelphia and Boston MSAs

The Complaint alleges that the provision of advertising time on

radio stations serving the Philadelphia, Pennsylvania Metro Survey Area

(``MSA'') and the Boston, Massachusetts MSA each constitute a line of

commerce and section of the country, of relevant market, for antitrust

purposes. These MSAs are the standard geographical units for which

Arbitron furnishes radio stations, advertisers and advertising agencies

in Philadelphia and Boston with data to aid in evaluating radio

audience size and composition. Local and national advertising that is

placed on radio stations within the Philadelphia and Boston MSAs is

aimed at reaching listening audiences in those MSAs, and radio stations

outside of those MSAs do not provide effective access to those

audiences. Thus, advertisers would not buy enough advertising time from

radio stations located outside of the Philadelphia MSA to defeat a

small but significant non-transitory increase in radio advertising

prices within that MSA. Likewise, advertisers would not buy enough

advertising time from radio stations located outside of the Boston MSA

to defeat a small but significant non-transitory increase in radio

advertising prices within that MSA.

Radio advertising time is sold by radio stations directly or

through their national representatives. Radio stations generate almost

all of their revenues from the sale of advertising time to local and

national advertisers.

Many local and national advertisers purchase radio advertising time

in Philadelphia and Boston because they find such advertising

preferable to advertising in other media to meet certain of their

specific needs. For such advertisers, radio time: may be less expensive

and, on a per-dollar basis, more cost-efficient than other media at

reaching the advertiser's target audience (individuals most likely to

purchase the advertiser's products of services); may reach target

audiences that cannot be reached as effectively through other media; or

may offer promotional opportunities to advertisers that they cannot

exploit as effectively using other media. For these reasons, may local

and national advertisers in Philadelphia and Boston who purchase radio

advertising time view radio either as a necessary advertising medium

for them, or as a necessary advertising complement to other media.

Although some local and national advertisers may switch some of

their advertising to other media rather than absorb a price increase in

radio advertising time in Philadelphia and Boston, the existence of

such advertisers would not prevent radio stations from profitably

raising their prices a small but significant amount. At a minimum,

stations could profitably raise prices to those advertisers who view

radio either as a necessary advertising medium for them, or as a

necessary advertising complement to other media. Radio stations, which

negotiate prices individually with advertisers, can identify those

advertisers with strong radio preferences. Consequently, radio stations

can charge different advertisers different rates. Because of this

ability price discriminate between different customers, radio stations

may charge higher prices to advertisers that view radio as particularly

effective for their needs, while maintaining lower prices for other

advertisers.

2. Harm to Competition

The Complaint alleges that Westinghouse's proposed acquisition of

Infinity would lessen competition substantially in the provision of

radio advertising time in the Philadelphia and Boston MSAs.

Westinghouse presently controls approximately 28 percent of all radio

advertising revenues in Philadelphia and approximately 15 percent of

all radio advertising revenues in Boston. Infinity presently controls

approximately 16 percent of all radio advertising revenues in

Philadelphia and more than 25 percent of all radio advertising revenues

in Boston. Westinghouse's market shares would rise to approximately 45

percent in Philadelphia and to more than 40 percent in Boston after the

proposed merger. According to the Herfindahl-Hirschman Index (``HHI''),

a widely-used measure of market concentration defined and explained in

Exhibit A annexed hereto, the pre-merger HHI in Philadelphia is

approximately 1876, which would rise to 2800 after the merger, with a

change of about 924. In Boston, the pre-,merger HHI is approximately

1875, which would rise to 2638 after the merger, with a change of about

763. These substantial increases in concentration are likely to reduce

competition and lead to higher prices and lower quality of service in

each of these markets.

Advertisers select radio stations to reach a large percentage of

their target audience based upon a number of factors, including, inter

alia, the size of the station's audience and whether the

characteristics of its audience have a high correlation to the target

audience of the advertisers. If a number of stations efficiently reach

that target audience, advertisers benefit from the competition among

such stations, which leads to better prices and services. Today,

several Westinghouse and Infinity stations compete head-to-head to

reach the same audiences and, for many local and national advertisers

buying time in Philadelphia and Boston, they are close substitutes for

each other based on their specific audience characteristics. The

proposed merger would eliminate this competition, most critically

affecting advertisers seeking to reach male listeners between the ages

of 18 and 54 in Philadelphia and Boston.

During individual price negotiations between advertisers and radio

stations, advertisers provide the stations with information about their

advertising needs, including their target audience and the desired

frequency and timing of ads. Radio stations thus have the ability to

charge advertisers differing prices after assessing the number and

attractiveness of alternative radio stations that can meet a particular

advertiser's specific target audience needs.

In Philadelphia and Boston, advertisers that must reach male

listeners within certain age ranges can help ensure competitive rates

by ``playing off'' Infinity stations against Westinghouse stations.

Because the direct competition between the Westinghouse and the

Infinity stations would be eliminated by the proposed merger, and

because advertisers seeking

[[Page 63868]]

to reach male listeners between the ages of 18 and 54 would have

inferior alternatives to the merged entity, the acquisition would give

Westinghouse the ability to raise prices and reduce quality. This is

particularly true because of the merged entity's ability to charge

different prices to different advertisers.

If Westinghouse raised prices or lowered services to those

advertisers who buy time on Westinghouse and Infinity stations because

of their strength in delivering access to certain audiences, non-

Westinghouse radio stations in Philadelphia and Boston would not be

induced to change their formats to attract those audiences in

sufficiently large numbers to defeat a price increase. Successful radio

stations are unlikely to undertake a format change solely in response

to small but significant increases in price being charged to

advertisers by a multi-station firm such as Westinghouse, because they

would likely lose a substantial portion of their existing audiences.

Even if less successful stations did change format, they would still be

unlikely to attract enough listeners to provide suitable alternatives

to the merged entity.

New entry into the Philadelphia and Boston radio advertising

markets is highly unlikely in response to a price increase by the

merged entity. No unallocated radio broadcast frequencies exist in

Philadelphia and Boston. Also, stations located in adjacent communities

cannot boost their power so as to enter the Philadelphia and Boston

MSAs without interfering with other stations on the same or similar

frequencies, a violation of Federal Communications Commission (``FCC'')

regulations.

For these reasons, the plaintiff concludes that the merger as

proposed would substantially lessen competition in the sale of radio

advertising time in the Philadelphia and Boston MSAs, eliminate actual

competition between Westinghouse and Infinity, and result in increased

prices and reduced quality of service for buyers of radio advertising

time in those markets, all in violation of Section 7 of the Clayton

Act.

III. Explanation of the Proposed Final Judgment

The proposed Final Judgment would preserve competition in the sale

of radio advertising time in the Philadelphia and Boston MSAs. It

requires the divestiture of WMMR-FM in Philadelphia and WBOS-FM in

Boston. The divestitures will preserve choices for advertisers,

particularly for those seeking to reach male listeners between the ages

of 18 and 54. They will also help ensure that radio advertising rates

do not increase and that services do not decline in Philadelphia and

Boston as a result of the acquisition. This relief will reduce the

market share Westinghouse would have achieved through the merger from

about 45 percent to about 37 percent in the Philadelphia MSA, and from

over 40 percent to 36.5 percent in the Boston MSA.

Unless the United States grants an extension of time, defendants

must divest WMMR-FM and WBOS-FM within six months after the Final

Judgment has been filed, or within five (5) business days after notice

of entry of this Final Judgment, whichever is later. Until the

divestitures take place, these stations, now owned by Westinghouse and

Infinity, respectively, will be maintained as independent competitors

to the other stations in the Philadelphia and Boston MSAs,

respectively, including the other Westinghouse and Infinity stations in

those markets.

If Westinghouse fails to divest either or both of these stations

within the time period specified in the Final Judgment, or any

extension thereof, the Court, upon application of the plaintiff, shall

appoint a trustee nominated by the plaintiff to effect the required

divestiture or divestitures. If a trustee is appointed, the proposed

Final Judgment provides that defendants will pay all costs and expenses

of the trustee and any professionals and agents retained by the

trustee. The compensation paid to the trustee and any persons retained

by the trustee shall be both reasonable in light of the value of WMMR-

FM and WBOS-FM, and shall be based on a fee arrangement providing the

trustee with an incentive based on the price and terms of the

divestitures and the speed with which they are accomplished. After

appointment, the trustee will file monthly reports with the plaintiff,

the defendants and the Court, setting forth the trustee's efforts to

accomplish the divestitures ordered under the proposed Final Judgment.

If the trustee has not accomplished the divestitures within six (6)

months after its appointment, the trustee shall promptly file with the

Court a report setting forth (1) the trustee's efforts to accomplish

the required divestitures, (2) the reasons, in the trustee's judgment,

why the required divestitures have not been accomplished, and (3) the

trustee's recommendations. At the same time, the trustee will furnish

such report to the plaintiff and defendants, who will each have the

right to be heard and to make additional recommendations consistent

with the purpose of the trust.

The proposed Final Judgment requires that defendants maintain WMMR-

FM and WBOS-FM separate and apart from their other stations, pending

divestiture. The Judgment also contains provisions to ensure that these

stations will be preserved, so that they will remain viable, aggressive

competitors after divestiture.

The proposed Final Judgment also requires defendants to notify the

plaintiff before acquiring any significant interest in another

Philadelphia or Boston radio station. Such acquisitions could raise

competitive concerns but might be too small to be otherwise reported

under the Hart-Scott-Rodino (``HSR'') premerger notification

requirements.

Moreover, defendants are also required to notify the plaintiff

before they enter into any Joint Sales Agreements (``JSAs''), where one

station takes over another station's advertising time, or enter into

any Local Marketing Agreements (``LMAs''), where one station takes over

another station's broadcasting and advertising time, or any other

comparable arrangements, in the Philadelphia or Boston areas.

Agreements whereby defendants sell advertising for or manage other

Philadelphia or Boston area radio stations would effectively increase

their market share in such MSA. Despite their clear competitive

significance, JSAs probably would not be reportable to the plaintiff

under the HSR Act. Thus, this provision in the decree ensures that the

plaintiff will receive notice of, and be able to stop, any agreements

that could have anticompetitive effects in the Philadelphia or Boston

markets.

The relief in the proposed Final Judgment is intended to remedy the

likely anticompetitive effects of the proposed acquisition of Infinity

by Westinghouse. Nothing in this Final Judgment is intended to limit

the plaintiff's ability to investigate or bring actions, where

appropriate, challenging other past or future activities of defendants

in the Philadelphia and Boston MSAs, including their entry into any

JSAs, LMAs or any other agreements related to the sale of advertising

time.

IV. Remedies Available to Potential Private Litigants

Secion 4 of the Clayton Act, 15 U.S.C. Sec. 15, provides that any

person who has been injured as result of conduct prohibited by the

antitrust laws may bring suite in federal court to recover three times

the damages the person has suffered, as well as costs and reasonable

attorneys' fees. Entry of the proposed Final Judgment will neither

impair nor assist the bringing of any private antitrust damage action.

Under the

[[Page 63869]]

provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec. 16(a),

the proposed Final Judgment has no prima facie effect in any subsequent

private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final

Judgment

The plaintiff and the defendants have stipulated that the proposed

Final Judgment may be entered by the Court after compliance with the

provisions of the APPA, provided that the plaintiff has not withdrawn

its consent. The APPA conditions entry upon the Court's determination

that the proposed Final Judgment is in the public interest.

The APPA provides a period of at least sixty (60) days preceding

the effective date of the proposed Final Judgment within which any

person may submit to the plaintiff written comments regarding the

proposed Final Judgment. Any person who wishes to comment should do so

within sixty (60) days of the date of publication of this Competitive

Impact Statement in the Federal Register. The plaintiff will evaluate

and respond to the comments. All comments will be given due

consideration by the Department of Justice, which remains free to

withdraw its consent to the proposed Final Judgment at any time prior

to its entry. The comments and the response of the plaintiff will be

filed with the Court and published in the Federal Register.

Any such written comments should be submitted to: Craig W. Conrath,

Chief, Merger Task Force, Antitrust Division, United States Department

of Justice, 1401 H Street, N.W., Suite 4000, Washington, D.C. 20530.

The proposed Final Judgment provides 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 Judgment.

VI. Alternatives to the Proposed Final Judgment

The plaintiff considered, as an alternative to the proposed Final

Judgment, a full trial on the merits of its Complaint against

defendants. The plaintiff is satisfied, however, that the divestiture

of WMMR-FM and WBOS-FM and other relief contained in the proposed Final

Judgment will preserve viable competition in the sale of radio

advertising time in the Philadelphia and Boston MSAs. Thus, the

proposed Final Judgment would achieve the relief the Government would

have obtained through litigation, but avoids the time, expense and

uncertainty of a full trial on the merits of the Complaint.

VII. Standard of Review Under the APPA for Proposed Final Judgment

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to a sixty (60) day

comment period, after which the court shall determine whether entry of

the proposed Final Judgment ``is in the public interest.'' In making

that determination, the court may consider--

(1) the competitive impact of such judgment, including

termination of alleged violations, provisions for enforcement and

modification, duration or relief sought, anticipated effects of

alternative remedies actually considered, and any other

considerations bearing upon the adequacy of such judgment;

(2) the impact of entry of such judgment 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). As the United States Court of Appeals for the

D.C. Circuit recently held, this statute permits a court to consider,

among other things, the relationship between the remedy secured and the

specific allegations set forth in the government's complaint, whether

the decree is sufficiently clear, whether enforcement mechanisms are

sufficient, and whether the decree may positively harm third parties.

See United States v. Microsoft, 56 F.3d 1448, 1461-62 (D.C. Cir. 1995).

In conducting this inquiry, ``[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.'' \1\ Rather,

\1\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette

Co., 406 F. supp. 713, 715 (D. Mass. 1975). A ``public interest''

determination can be made properly on the basis of the Competitive

Impact Statement and Responses to Comment filed pursuant to the

APPA. Although the APPA authorizes the use of additional procedures,

15 U.S.C. Sec. 16(f), those procedures are discretionary. A court

need not invoke any of them unless it believes that the comments

have raised significant issues and that further proceedings would

aid the court in resolving those issues. See H.R. Rep. 93-1463, 93rd

Cong. 2d Sess. 8-9 (1974), reprinted in U.S.C.C.A.N. 6535, 6538.

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[a]bsent a showing of corrupt failure of the government to discharge

its duty, the Court, in making its public interest finding, should *

* * carefully consider the explanations of the government in the

competitive impact statement and its responses to comments in order

to determine whether those explanations are reasonable under the

circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Case. para.

61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the adequacy of the relief secured by

the decree, a court may not ``engage in an unrestricted evaluation of

what relief would best serve the public.'' United States v. BNS, Inc.,

858 F.2d 456, 462 (9th Cir. 1988), citing United States v. Bechtel

Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083

(1981); see also Microsoft, 56 F.3d at 1460-62. Precedent requires that

the balancing of competing social and political interests affected

by a proposed antitrust consent decree must be left, in the first

instance, to the distance 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.\2\

\2\ Bechtel, 648 F.2d at 666 (citations omitted)(emphasis

added); see BNS, 858 F.2d at 463; United States v. National

Broadcasting Co., 449 F. Supp. 1127, 1143 (C.D. Cal. 1978);

Gillette, 406 F. Supp. at 716. See also Microsoft, 56 F.3d at 1461

(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' '') (citations omitted).

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The proposed Final Judgment, therefore, should not be reviewed under a

standard of whether it is certain to eliminate every anticompetitive

effect of a particular practice or whether it mandates certainty of

free competition in the future. Court approval of a final judgment

requires a standard more flexible and less strict than the standard

required for a finding of liability. ``[A] proposed decree must be

approved even if it falls short of the remedy the court would impose on

its own, as long as it falls within the range of acceptability or is

`within the reaches of public interest.' '' \3\

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\3\ United States v. American Tel. and Tel Co., 552 F. Supp.

131, 151 (D.D.C. 1982), aff'd. sub nom, Maryland v. United States,

460 U.S. 1001 (1983), quoting Gillette Co., 406 F. Supp. at 716

(citations omitted); United States v. Alcan Aluminum, Ltd., 605 F.

Supp. 619, 622 (W.D. Ky. 1985).

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This is strong and effective relief that should fully address the

competitive harm posed by the proposed merger.

VIII. Determinative Documents

There are no determinative materials or documents within the

meaning of the APPA that were considered by the plaintiff in

formulating the proposed Final Judgment.

Dated: November 14, 1996.

[[Page 63870]]

Respectfully submitted,

Dando B. Cellini,

Merger Task Force, U.S. Department of Justice, Antitrust Division, 1401

H Street NW., Suite 4000, Washington, DC 20530, (202) 307-0829.

EXHIBIT A--Definition of HHI and Calculations for Market

``HHI'' means the Herfindahl-Hirschman Index, a commonly accepted

measure of market concentration. It is calculated by squaring the

market share of each firm competing in the market and then summing the

resulting numbers. For example, for a market consisting of four firms

with shares of thirty, thirty, twenty and twenty percent, the HHI is

2600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2600). The HHI takes into account

the relative size and distribution of the firms in a market and

approaches zero when a market consists of a large number of firms of

relatively equal size. The HHI increases both as the number of firms in

the market decreases and as the disparity in size between those firms

increases.

Markets in which the HHI is between 1000 and 1800 points are

considered to be moderately concentrated, and those in which the HHI is

in excess of 1800 points are considered to be concentrated.

Transactions that increase the HHI by more than 100 points in

concentrated markets presumptively raise antitrust concerns under the

Merger Guidelines. See Merger Guidelines Sec. 1.51.

Certificate of Service

I, Dando B. Cellini, hereby certify that, November 15, 1996, I

caused a copy of the foregoing Competitive Impact Statement filed this

day in United States v. Westinghouse Broadcasting Corporation and

Infinity Broadcasting Corporation, Civil Action No. 1:96CV02563 (NHJ),

to be served on defendants Westinghouse Broadcasting Corporation and

Infinity Broadcasting Corporation by having a copy mailed, first class,

postage prepaid, to:

Joe Sims, Jones, Day, Reavis & Pogue, 1450 G St., N.W., Washington,

D.C. 20005, Counsel for Westinghouse Electric Corporation

Daniel M. Abuhoff, Debevoise & Plimpton, 875 Third Avenue, New York, NY

10022, Counsel for Infinity Broadcasting Corporation.

Dated: November 15, 1996.

Dando B. Cellini,

[FR Doc. 96-30550 Filed 11-29-96; 8:45 am]

BILLING CODE 4410--M