Proposed Final Judgment and Competitive Impact Statement; United States of America versus EZ Communications, Inc. and Evergreen Media Corporation

Federal RegisterApr 3, 1997

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DEPARTMENT OF JUSTICE

Proposed Final Judgment and Competitive Impact Statement; United

States of America versus EZ Communications, Inc. and Evergreen Media

Corporation

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

[[Page 15930]]

Competitive Impact Statement have been filed with the United States

District Court for the District of Columbia in United States v. EZ

Communications, Inc. and Evergreen Media Corporation Civ. Action No. 97

CV 406. 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).

Plaintiff filed a civil antitrust Complaint on February 27, 1997,

alleging that a proposed swap and acquisition of radio stations in

Charlotte, North Carolina between EZ Communications, Inc. (``EZ'') and

Evergreen Media Corporation (``Evergreen'') would violate Section 7 of

the Clayton Act, 15 U.S.C. Sec. 18. The Complaint alleges that EZ and

Evergreen both own and operate numerous radio stations throughout the

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

Charlotte, North Carolina metropolitan area. The combined transactions

would give EZ a significant share of the radio advertising market in

the Charlotte metropolitan area. As a result, the combination of these

stations would lessen competition substantially in the sale of radio

advertising time in the Charlotte metropolitan area.

The prayer for relief seeks: (a) An adjudication that the proposed

transactions described in the Complaint would violate Section 7 of the

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

the consummation of such transactions; (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 EZ to complete its transactions with Evergreen,

yet preserves competition in the market in which the transactions would

raise significant competitive concerns. A Stipulation and proposed

Final Judgment embodying the settlement were filed at the same time the

Complaint was filed.

The proposed Final Judgment orders EZ to divest WRFX-FM, currently

owned by Evergreen. Unless the plaintiff grants a time extension, EZ

must divest this radio station either within six months after the

filing of the Complaint or within five (5) business days after notice

of entry of the Final Judgment, whichever is later. If EZ does not

divest WRFX-FM within the divestiture period, the Court shall, upon

plaintiff's application, appoint a trustee to sell the assets. The

proposed Final Judgment also requires EZ to ensure that, until the

divestiture mandated by the Final Judgment has been accomplished, WRFX-

FM will be operated independently as a viable, ongoing business, and

kept separate and apart from defendant EZ's other Charlotte radio

stations. Further, the proposed Final Judgment requires defendants to

give plaintiff prior notice regarding future radio station acquisitions

or certain agreements pertaining to the sale of radio advertising time

in Charlotte.

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, N.W., 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 U.S. Department of Justice, Antitrust

Division, 325 7th Street, N.W., Washington. D.C. 20530 (telephone:

(202) 514-2481) and the office of the Clerk of the United States

District Court for the District of Columbia, 3rd Street and

Constitution Avenue, N.W., Washington, D.C.

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.

United States District Court For the District of Columbia

United States of America, Plaintiff, v. EZ Communications, Inc.

and Evergreen Media Corporation, Defendants. Civil Action No.

1:97CV00406, Filed 2/27/97, Judge Oberdorfer.

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 parties stipulate that a Final Judgment in the form hereto

attached may be filed and entered by the Court, upon the motion of any

party or upon the Court's own motion, at any time after compliance with

the requirements of the Antitrust Procedures and Penalties Act (15

U.S.C. Sec. 16), and without further notice to any party or other

proceedings, provided that plaintiff has not withdrawn its consent,

which it may do at any time before the entry of the proposed Final

Judgment by serving notice thereof on defendants and by filing that

notice with the Court.

(3) Defendants shall abide by and comply with the provisions of the

proposed Final Judgment pending entry of the Final Judgment, or until

expiration of time for all appeals of any Court ruling declining entry

of the proposed Final Judgment, and shall, from the date of the signing

of this Stipulation by the parties, comply with all the terms and

provisions of the proposed Final Judgment as though the same were in

full force and effect as an order of the Court.

(4) Defendants shall not consummate the transaction sought to be

enjoined by the complaint herein before the Court has signed this

Stipulation and Order.

(5) This Stipulation shall apply with equal force and effect to any

amended proposed Final Judgment agreed upon in writing by the parties

and submitted to the Court. In the event that, as contemplated by

defendants, the WRFX-FM Assets are transferred by defendant Evergreen

Media Corporation (``Evergreen'') to defendant EZ Communications, Inc.

(``EZ'') or to a trust approved by plaintiff and the FCC prior to the

entry of the attached Final Judgment, then an amended Complaint and

proposed Final Judgment which do not name Evergreen as a defendant

shall promptly be filed herein and submitted to the Court.

(6) The parties recognize that there could be a delay in obtaining

approval by or a ruling of a government agency related to either the

transfer of the WRFX-FM Assets to EZ or to an approved trust, described

in paragraph (5) above, or the divestiture required by Section IV of

the Final Judgment, notwithstanding the good faith efforts of

defendants and any prospective Acquirer, as defined in the Final

Judgment. In this circumstance, plaintiff will, in the exercise of its

sole discretion, acting in good faith, give special consideration to

forbearing from applying for the appointment of a trustee pursuant to

Section V of the Final Judgment, or from pursuing legal remedies

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

defendants have entered into a definitive agreement to divest the WRFX-

FM Assets, and such agreement and the Acquirer have been approved by

plaintiff; (b) all papers necessary to

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secure any governmental approvals and/or rulings to effectuate such

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

rulings) have been filed with the appropriate agency; (c) receipt of

such approvals are the only closing conditions that have not been

satisfied or waived; and (d) defendants have demonstrated that neither

they nor the prospective Acquirer are responsible for any such delay.

(7) In the event (a) plaintiff withdraws its consent, as provided

in paragraph 2 above, or (b) the proposed Final Judgment is not entered

pursuant to this Stipulation, the time has expired for all appeals of

any Court ruling declining entry of the proposed Final Judgment, and

the Court has not otherwise ordered continued compliance with the terms

and provisions of the proposed Final Judgment, then the parties are

released from all further obligations under this Stipulation, and the

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

this or any other proceeding.

(8) Defendants represent that the divestiture ordered in the

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

later raise no claim of hardship or difficulty as grounds for asking

the Court to modify any of the divestiture provisions contained

therein.

Dated: February 26, 1997.

For Plaintiff United States of America

Dando B. Cellini,

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

H Street, NW., Suite 4000, Washington, DC 20005, (202) 307-0829.

So Ordered.

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United States District Judge

For Defendant EZ Communications, Inc.

Ray V. Hartwell, III,

Andrew J. Strenio, Jr.,

Hunton & Williams,

1900 K Street, NW, Washington, DC 20006-1109, (202) 955-1639.

For Defendant Evergreen Media Corporation.

Bruce J. Prager,

Latham & Watkins,

885 Third Avenue, New York, NY 10022-4802, (212) 906-1272.

Final Judgment

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

Complaint herein on February 27, 1997, and defendants EZ

Communications, Inc. (``EZ'') and Evergreen Media Corporation

(``Evergreen''), by their 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

divestiture 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 EZ and Evergreen,

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

(15 U.S.C. 18).

II. Definitions

As used in this Final Judgment:

A. EZ means defendant EZ Communications, Inc., a Virginia

corporation with its headquarters in Fairfax, Virginia, and includes

its successors and assigns (specifically including without limitation

American Radio Systems Corporation (``ARS''), a Delaware corporation

headquartered in Boston, Massachusetts, which has agreed to acquire EZ

through merger), its subsidiaries, and directors, officers, managers,

agents and employees acting for or on behalf of EZ.

B. Evergreen means defendant Evergreen Media Corporation, a

Delaware corporation with its headquarters in Irving, Texas, and

includes Evergreen's successors and assigns, its subsidiaries, and

directors, officers, managers, agents and employees acting for or on

behalf of Evergreen.

C. WRFX-FM Assets means all of the assets, tangible or intangible,

used in the operation of the WRFX 99.7 FM radio station in the

Charlotte Area, 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, authorizations

and applications therefor issued by the Federal Communications

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

station, all contracts, agreements, leases and commitments of

defendants 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 logos and other records maintained by defendants or

that station in connection with its business.

D. Charlotte Area means the Charlotte, North Carolina Metro Survey

Area as identified by The Arbitron Radio Market Report for Charlotte

(Fall 1996), which is made up of the following counties: Union, York,

Cabarrus, Rowan, Mecklenburg, Lincoln and Gaston.

E. Acquirer means the entity to whom defendants divest the WRFX-FM

Assets under this Final Judgment.

F. EZ Radio Station means any radio station owned by EZ and

licensed to a community in the Charlotte Area, other than WRFX-FM.

G. Non-EZ Radio Station means any radio station licensed to a

community in the Charlotte area that is not an EZ Radio Station.

III. Applicability

A. The provisions of this Final Judgment apply to the defendants,

their successors and assigns (specifically including without limitation

ARS), their subsidiaries, affiliates, directors, officers, managers,

agents and employees, and all other persons in active concert or

participation with them who shall have received actual notice of this

Final Judgment by personal service or otherwise, specifically including

any trustee or trustees appointed by defendants pursuant to an FCC

License Trust Agreement or an FCC Assets Trust Agreement applicable to

the WRFX-FM Assets.

B. The defendants shall require, as a condition of the sale or

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

their business of owning and operating their portfolio of radio

stations in the Charlotte Area, that the acquiring party or parties

agree to be bound by the provisions of this Final

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

agreement from an Acquirer in connection with the divestiture of the

WRFX-FM Assets.

IV. Divestiture of WRFX-FM Assets

A. Defendant EZ is hereby ordered and directed, in accordance with

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

filing of the compliant in this action, or within five (5) business

days after notice of entry of this Final Judgment, whichever is later,

to divest the WRFX-FM Assets to an Acquirer acceptable to plaintiff, in

its sole discretion. Unless plaintiff otherwise consents in writing,

the divestiture pursuant to Section IV of this Final Judgment, or by

the trustee appointed pursuant to Section V, shall include all the

WRFX-FM Assets and shall be accomplished in such a way as to satisfy

plaintiff, in its sole discretion, that the WRFX-FM Assets can and will

be used by an Acquirer as a viable, ongoing commercial radio business.

The divestiture, whether pursuant to Section IV or V of this Final

Judgment, shall be made (1) to an Acquirer that, in the sole judgment

of plaintiff, has the capability and intent of competing effectively,

and has the managerial, operational and financial capability to compete

effectively as a radio station operator in the Charlotte Area; and (2)

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

judgment of plaintiff, interfere with the ability of the Acquirer to

compete effectively.

B. Defendant EZ agrees to use its best efforts to divest the WRFX-

FM Assets, and to obtain all regulatory approvals necessary for such

divestiture, as expeditiously as possible. Plaintiff, in its sole

discretion, may extend the time period for the divestiture for two (2)

additional thirty (30)-day periods of time, not to exceed sixty (60)

calendar days in total.

C. In accomplishing the divestiture ordered by this Final Judgment,

defendant EZ promptly shall make known, by usual and customary means,

the availability of the WRFX-FM Assets. Defendant EZ 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. Defendant EZ shall make known

to any person making an inquiry regarding a possible purchase of the

WRFX-FM Assets that the assets described in Section II (C) are being

offered for sale. Defendants also shall offer to furnish to all bona

fide prospective purchasers, subject to customary confidentiality

assurances, all information regarding the WRFX-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

WRFX-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, as is customary in a due diligence process.

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

to employ the general manager or any other employee of WRFX-FM.

V. Appointment of Trustee

A. In the event that EZ has not divested the WRFX-FM Assets within

the time period 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 WRFX-FM Assets. The trustee

shall have the power and authority to accomplish the divestiture at the

best price than 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 such 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 defendant EZ any investment bankers,

attorneys or other agents reasonably necessary in the judgment of the

trustee to assist in the divestiture, and such professionals or agents

shall be solely accountable to the trustee. The trustee shall have the

power and authority to accomplish the divestiture at the earliest

possible time to purchaser acceptable to plaintiff in its sole

judgment, and shall have such other powers as this Court shall deem

appropriate. EZ shall not object to the sale of the WRFX-FM Assets by

the trustee on any grounds other than the trustee's malfeasance. Any

such objection by EZ 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 VII of this Final Judgment.

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

divestiture and the speed with which it is accomplished.

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

trustee's accomplishment of the divestiture of the WRFX-FM Assets, and

shall use their best efforts to assist the trustee in accomplishing the

required divestiture, 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 WRFX-FM Assets, and

defendants shall develop such financial or other information as may be

necessary for the divestiture of the WRFX-FM Assets. Defendants shall

permit prospective purchasers of the WRFX-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 divestiture required by this Final Judgment.

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

monthly reports with defendant EZ, plaintiff and the Court, setting

forth the trustee's efforts to accomplish divestiture of the WRFX-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 WRFX-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

assets.

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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 divestiture has 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

plaintiff and defendant EZ, which 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 WRFX-FM Assets required by Section IV

of the Final Judgment has been accomplished:

A. Defendants shall take all steps necessary to operate WRFX-FM as

a separate, independent, ongoing, economically viable and active

competitor to defendant EZ's other stations in the Charlotte Area, and

shall take all steps necessary to ensure that, except as necessary to

comply with Section IV and paragraphs B and C 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,

defendant EZ.

B. Defendants shall use all reasonable efforts to maintain and

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

1996 or previously approved levels for 1997, whichever are higher,

promotional advertising, sales, marketing and merchandising support for

such radio station.

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

assets used in the operation of WRFX-FM are fully maintained. WRFX-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 policies,

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

notice of such transfer.

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

by plaintiff, sell any WRFX-FM Assets.

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

of the WRFX-FM Assets.

F. Defendants shall 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.

VII. Notification

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

agreement to divest, including all contemplated ancillary agreements

(e.g., financing), to effect any proposed divestiture pursuant to

Section IV or V of this Final Judgment, defendant EZ 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 defendant EZ. 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 WRFX-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

to 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 it. Upon objection by plaintiff, or

by defendant EZ 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 defendants' 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 WRFX-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 for the WRFX-FM Assets.

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

Judgment, defendants shall deliver to 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

WRFX-FM pursuant to Section VII 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 WRFX-FM and to divest the WRFX-FM Assets.

X. Notice

A. Unless such transaction is otherwise subject to the reporting

and waiting period requirements of the Hart-Scott-Rodino Antitrust

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

EZ, without providing advance notification to the plaintiff, shall not

directly or indirectly acquire any assets of or any interest, including

any financial, security, loan, equity, or

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management interest, in any Non-EZ Radio Station.

B. EZ, without providing advance notification to the plaintiff,

shall not directly or indirectly enter into any agreement or

understanding that would allow EZ to market or sell advertising time or

to establish advertising prices for any Non-EZ Radio Station.

C. Notification described in (A) and (B) above 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 respect to EZ Radio

Stations in the Charlotte Area. Notification shall be provided at least

thirty (30) days prior to acquiring any such interest or entering any

such agreement covered in (A) or (B) above, and shall include, beyond

what may be required by the applicable instructions, the names of the

principal representatives of the parties to the agreement who

negotiated the agreement, and any management or strategic plans

discussing the proposed transaction. If within the 30-day period after

notification, representatives of the plaintiff 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.

D. 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 or 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 their 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

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

restraint or interference from defendants, to interview directors,

officers, employees and agents of defendants, who may have cousel

present, regarding any such matters.

B. Upon the written request of the Untied 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

Section IX or this Section XI shall be divulged by any representative

of the Untied States 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 a

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.

Certificate of Service

I, Dando B. Cellini, hereby certify that, on February 27, 1997, I

caused the foregoing documents to be served on defendants EZ

Communications, Inc. and Evergreen Media Corporation by having a copy

mailed, first-class postage prepaid, to:

Ray V. Hartwell, III,

Andrew J. Strenio, Jr.,

Hunton & Williams,

1900 K Street, NW, Washington, DC 20006-1109, (202) 955-1639, Counsel

for EZ Communications, Inc.

Bruce J. Prager,

Latham & Watkins,

885 Third Avenue, New York, NY 10022-4802, (212) 906-1272, Counsel for

Evergreen Media Corporation.

Dando B. Cellini.

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