UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
TEXAS TELEVISION, INC., GULF
COAST
BROADCASTING COMPANY, and K-SIX
TELEVISION,
INC.,
Defendants. | )
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Civil Action No.:
C-96-64 |
FINAL
JUDGMENT
WHEREAS Plaintiff, United States of America, filed its
complaint on February 6, 1996
and Plaintiff and Defendants, Texas
Television, Inc., Gulf Coast Broadcasting Company, and
K-
Six Television, Inc., have consented to the
entry of this Final Judgment without trial or
adjudication of any issue of fact or law,
and without this Final Judgment constituting
any
evidence against or an admission by any
party with respect to any such issue;
AND WHEREAS Defendants have agreed to be bound by
the provisions of this Final
Judgment pending its approval by the
Court;
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:
Page 2
1.
JURISDICTION AND VENUE
The Court has jurisdiction of the subject matter of this action
and of each of the parties
consenting to this Final Judgment. The
complaint states a claim upon which relief may
be
granted against Defendants under Section
1 of the Sherman Act, 15 U.S.C. § 1.
2.
DEFINITIONS
As used in this Final Judgment:
a. "Affiliated" means under common
ownership or control.
b. "Multichannel video programming
distributor" means a cable operator, a
multichannel multipoint distribution
service or any other person that sells multiple
channels
of video programming to
subscribers or customers.
c. "Retransmission consent" means any
authorization given by a television
broadcast
station to a multichannel video
programming distributor to distribute
that
station's signal.
d. "Retransmission consent negotiation"
means any communication between
a
television broadcast station and a
multichannel video programming distributor
relating
to the compensation or
consideration to be given by the distributor in
exchange
for retransmission consent.
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e. "Television broadcaster" means:
i. each Defendant and
each of its officers, directors, agents,
employees, subsidiaries,
successors and assigns;
ii. each person that
operates any television broadcast station; and
iii. each person that
possesses an equity interest of at least five percent
(5%) in any television
broadcast station.
f. "Television broadcast station" means any
broadcast station, as defined in
47 U.S.C.
§ 153(dd), that broadcasts
television signals.
3.
APPLICABILITY
This Final Judgment applies to each Defendant and to each
of their officers, directors,
agents, employees, subsidiaries,
successors and assigns, and to all other persons in active
concert
or participation with any of them which
shall have received actual notice of this Final
Judgment
by personal service or otherwise.
4.
PROHIBITED CONDUCT
a. Each
Defendant is hereby enjoined and
restrained from directly or
indirectly
entering into, adhering to,
maintaining, soliciting or knowingly
performing any act in furtherance of any
contract, agreement, understanding or
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plan with
any television broadcaster not
affiliated with that Defendant relating to
retransmission consent or retransmission
consent negotiations.
b. Each
Defendant is further enjoined and
restrained from directly or
indirectly
communicating to any television
broadcaster not affiliated with that
Defendant:
i. Any information
relating to retransmission consent or
retransmission consent negotiations,
including, but not limited to, the
negotiating strategy of any television
broadcaster, or the type or value of
any
consideration sought by any television
broadcaster; or
ii. Any information
relating to the negotiating strategy of any
television broadcaster, or to the type or
value of any consideration sought
by any
television broadcaster relating to
any actual or proposed transaction
with any
multichannel video programming
distributor.
c. Nothing
contained in Section IV.B. of
this Final Judgment shall prohibit
any
Defendant, in response to any question
to it from any news organization
related to
retransmission consent or to any
actual or proposed transaction with any
multichannel video programming
distributor, from providing to that news
organization a response that does not
disclose that Defendant's negotiating
strategy,
the content or progress of
negotiations, any plan related to retransmission
consent,
or the type or value of any
consideration being sought.
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5.
NOTIFICATION
PROVISIONS
Each Defendant is ordered and directed:
a. To send
a written notice, in the form
attached as Appendix A to this Final
Judgment, and a copy of this Final
Judgment, within sixty (60) days of the entry
of this
Final Judgment, to each
multichannel video programming distributor that
distributes the television signal of any of
Defendant's television broadcast stations
transmitting in Corpus Christi;
b. To send
a written notice, in the form
attached as Appendix A to this Final
Judgment, and a copy of this Final
Judgment, to each multichannel video
programming distributor, that contacts the
Defendant within ten (10) years of
entry of
this Final Judgment to request
retransmission consent for the television
signal of
any of Defendant's television
broadcast stations transmitting in Corpus
Christi,
and which was not given such
notice pursuant to Section V.A. Such
notice
shall be sent within seven (7) days
after such multichannel video
programming distributor first contacts the
Defendant about carrying the
Defendant's signal.
6.
COMPLIANCE PROGRAM
Each Defendant is ordered to establish and maintain an
antitrust compliance program
which shall include designating, within 30
days of entry of this Final Judgment, an
Antitrust
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Compliance Officer with responsibility
for implementing the antitrust compliance program
and
achieving full compliance with this Final
Judgment. The Antitrust Compliance Officer shall,
on
a continuing basis, be responsible for the
following:
a. Furnishing a copy of this Final Judgment
within thirty (30) days of entry
of the
Final Judgment to each of that
Defendant's officers and directors and each
of its
employees, salespersons, sales
representatives, or agents whose duties relate
to
retransmission consent for any of
Defendant's television broadcast stations
transmitting in Corpus Christi;
b. Distributing in a timely manner a copy of
this Final Judgment to each
person
who succeeds to a position
described in Section VI.A.; and
c. Obtaining from each person designated
in Sections VI.A. or B. a signed
certification that he or she has read,
understands and agrees to abide by the terms
of this
Final Judgment and is not aware of
any violation of the Final Judgment
that has
not already been reported to the
Antitrust Compliance Officer and
understands that failure to comply with this
Final Judgment may result in
conviction for criminal contempt of
court.
7.
CERTIFICATION
a. Within
75 days of the entry of this Final
Judgment, Defendant shall certify
to
Plaintiff whether the Defendant has
designated an Antitrust Compliance Officer
and has
distributed the Final Judgment in
accordance with Section VI.A. above.
b.
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c. For ten
years after the entry of this Final
Judgment, on or before its
anniversary date, the Defendant shall file
with the Plaintiff an annual statement as
to the fact
and manner of its compliance
with the provisions of Sections V and VI.
d. If
Defendant's Antitrust Compliance
Officer learns of any possible
violation
of any of the terms and
conditions contained in this Final Judgment,
Defendant shall forthwith take appropriate
action to terminate or modify the
activity
so as to comply with this Final
Judgment. Any such action shall be
reported
by Defendant in the respective
annual statement required by paragraph
VII.B.
above.
8.
PLAINTIFF ACCESS
a. For the
purpose of determining or
securing compliance with this Final
Judgment, and for no other purpose, duly
authorized representatives of Plaintiff
shall,
upon written request of the Attorney
General or the Assistant Attorney
General
in charge of the Antitrust
Division, and on reasonable notice to a
Defendant, be permitted, subject to any
legally recognized privilege:
i. Access during that
Defendant's office hours to inspect and copy all
records
and documents in the possession
or under the control of that
Defendant, which may have counsel
present, relating to any matters
contained in this Final Judgment;
and
ii.
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iii. To interview that
Defendant's officers, employees and agents, who
may
have counsel present, regarding any
such matters. The interviews
shall be
subject to the Defendant's
reasonable convenience.
b. Upon the
written request of the Attorney
General or the Assistant Attorney
General
in charge of the Antitrust Division
made to any Defendant at its principal
office,
that Defendant 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, subject to any legally
recognized privilege.
c. No
information or documents obtained
by the means provided in this
Section
VIII shall be divulged by any
representative of the Department of Justice
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 the United
States is a
party, 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,
that 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 that
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) days' notice shall be given
by Plaintiff to that Defendant prior to divulging
such
material in any legal proceeding (other
than a grand jury proceeding), so that Defendant
shall
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have an opportunity to apply to this Court
for protection pursuant to Rule 26(c)(7) of the
Federal
Rules of Civil Procedure.
9.
DURATION OF FINAL
JUDGMENT
This final judgment will expire on the tenth anniversary of its
date of entry.
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10.
CONSTRUCTION, ENFORCEMENT,
MODIFICATION AND COMPLIANCE
Jurisdiction is retained by the Court for the purpose of enabling
any of the parties to this
Final Judgment to apply to this Court at
any time for such further orders or directions as may
be
necessary or appropriate for the
construction or carrying out of this Final Judgment, for
the
modification of any of its provisions, for
its enforcement or compliance, and for the
punishment
of any violation of its provisions.
11.
PUBLIC
INTEREST
Entry of this Final Judgment is in the public interest.
Dated:
JANIS GRAHAM JACK
United States District Judge
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APPENDIX A
Dear Distributor:
In February 1996, the Antitrust Division
of the United States Department of Justice filed
a
civil suit that alleged that KIII, KRIS and
KZTV violated the antitrust laws of the United
States
by conspiring with the intent and effect of
raising the price of retransmission consent rights in
the
Corpus Christi region. Our station denies
these allegations. Without admitting any violation
of
the law and without being subject to any
monetary penalties, our station has agreed to the
entry
of a civil Final Judgment that prohibits us
from engaging in certain practices for a period of
ten
(10) years.
I have enclosed a copy of the Final
Judgment for your information. Retransmission
consent was authorized by Congress in the
Cable Television Consumer Protection and
Competition Act of 1992. Under the
terms of the enclosed Final Judgment, our station may
not
enter into any agreement or understanding
with any other television broadcast station relating
to
retransmission consent or retransmission
consent negotiations. The Final Judgment also
forbids
our station from communicating certain
related information to any other station.
If you learn that our station or its agents
have violated the terms of the Final Judgment at
any time after the its effective date, you
should provide this information to our station in
writing.
Should you have any questions concerning
this letter, please feel free to contact me.
Sincerely,
________________________________
[GENERAL MANAGER OF STATION]
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