95-4280. Tele-Communication, Inc.; Proposed Consent Agreement With Analysis To Aid Public Comment  

  • [Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
    [Notices]
    [Pages 9847-9852]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-4280]
    
    
    
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    FEDERAL TRADE COMMISSION
    [File No. 941 0132]
    
    
    Tele-Communication, Inc.; Proposed Consent Agreement With 
    Analysis To Aid Public Comment
    
    AGENCY: Federal Trade Commission.
    
    ACTION: Proposed Consent Agreement.
    
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    SUMMARY: In settlement of alleged violations of federal law prohibiting 
    unfair acts and practices and unfair methods of competition, this 
    consent agreement, accepted subject to final Commission approval, would 
    permit, among other things, Tele-Communication, Inc. (TCI) to complete 
    its acquisition of TeleCable, on the condition that it divest either 
    its own Columbus cable TV assets, or those of TeleCable, within twelve 
    months. If the divestitures were not completed on time, the consent 
    agreement would permit the Commission to appoint a trustee to complete 
    the transaction. In addition, TCI, for ten years, would be required to 
    obtain Commission approval before acquiring any cable TV system in the 
    Columbus, GA., area.
    
    DATES: Comments must be received on or before April 24, 1995.
    
    ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
    Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
    
    FOR FURTHER INFORMATION CONTACT:
    Ronald Rowe, FTC/S-2105, Washington, DC 20580, (202) 326-2610.
    
    SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
    Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
    the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
    given that the following consent agreement containing a consent order 
    to cease and desist, having been filed with and accepted, subject to 
    final approval, by the Commission, has been placed on the public record 
    for a period of sixty (60) days. Public comment is invited. Such 
    comments or views will be considered by the Commission and will be 
    available for inspection and copying at its principal office in 
    accordance with Section 4.9(b)(6)(ii) of the Commission's rules of 
    Practice (16 CFR 4.9(b)(6)(ii)).
    
    Agreement Containing Consent Order
    
        The Federal Trade Commission (``Commission''), having initiated an 
    investigation of the proposed acquisition of the common stock of 
    TeleCable Corporation by Tele-Communications, Inc. and the proposed 
    merger of TeleCable Corporation into TCI Communications, Inc., an 
    entity within Tele-Communications, Inc., and it now appearing that 
    Tele-Communications, Inc., hereinafter sometimes referred to as 
    ``proposed respondent,'' is willing to enter into an agreement 
    containing an order to divest certain assets, and to cease and desist 
    from making certain acquisitions, and providing for other relief:
        It is hereby agreed by and between proposed respondent, by its duly 
    authorized officer and attorney, and counsel for the Commission that:
        1. Proposed respondent Tele-Communications, Inc. is a corporation 
    organized, existing, and doing business under and by virtue of the laws 
    of the State of Delaware, with its principal office and place of 
    business at 5619 DTC Parkway, Englewood, Colorado 80111.
        2. Proposed respondent admits all the jurisdictional facts set 
    forth in the draft of complaint.
        3. Proposed respondent waives:
        a. any further procedural steps;
        b. the requirement that the Commission's decision contain a 
    statement of findings of fact and conclusions of law;
        c. all rights to seek judicial review or otherwise to challenge or 
    contest the validity of the order entered pursuant to this agreement; 
    and
        d. any claim under the Equal Access to Justice Act.
        4. This agreement shall not become part of the public record of the 
    proceeding unless and until it is accepted by the Commission. If this 
    agreement is accepted by the Commission it, together with the draft of 
    complaint contemplated thereby, will be placed on the public record for 
    a period of sixty (60) days and information in respect thereto publicly 
    released. The Commission thereafter may either withdraw its acceptance 
    of this agreement and so notify the proposed respondent, in which event 
    it will take such action as it may consider appropriate, or issue and 
    serve its complaint (in such form as the circumstances may require) and 
    decision, in disposition of the proceeding.
        5. This agreement is for settlement purposes only and does not 
    constitute an admission by proposed respondent that the law has been 
    violated as alleged in the draft of complaint, or that the facts as 
    alleged in the draft complaint, other than jurisdictional facts, are 
    true.
        6. This agreement contemplates that, if it is accepted by the 
    Commission, and if such acceptance is not subsequently withdrawn by the 
    Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
    Rules, the Commission may, without further notice to the proposed 
    respondent, (1) issue its complaint corresponding in form and substance 
    with the draft of complaint and its decision containing the following 
    order to divest and to cease and desist in disposition of the 
    proceeding and (2) make information public with respect thereto. When 
    so entered, the order to divest and to cease and desist shall have the 
    same force and effect and may be altered, modified or set aside in the 
    same manner and within the same time provided by statute for other 
    orders. The order shall become final upon service. Delivery by the U.S. 
    Postal Service of the complaint and decision containing the agreed-to 
    order to proposed respondent's address as [[Page 9848]] stated in this 
    agreement shall constitute service. Proposed respondent waives any 
    right it may have to any other manner of service. The complaint may be 
    used in construing the terms of the order, and no agreement, 
    understanding, representation, or interpretation not contained in the 
    order or the agreement may be used to vary or contradict the terms of 
    the order.
        7. Proposed respondent has read the proposed complaint and order 
    contemplated hereby. Proposed respondent understands that once the 
    order has been issued, it will be required to file one or more 
    compliance reports showing that it has fully complied with the order. 
    Proposed respondent further understands that it may be liable for civil 
    penalties in the amount provided by law for each violation of the order 
    after it becomes final.
    
    Order
    
    I
        It is ordered that, as used in this order, the following 
    definitions shall apply:
        A. ``Respondent'' or ``TCI'' means (1) Tele-Communications, Inc. 
    and its predecessors, successors and assigns, subsidiaries, and 
    divisions, and their respective directors, officers, agents, and 
    representatives; and (2) partnerships, joint ventures, groups and 
    affiliates that Tele-Communications, Inc. controls, directly or 
    indirectly, and their successors and assigns, and their respective 
    directors, officers, agents, and representatives.
        B. ``Control'' means (i) the ability or right, contractual or 
    otherwise, to direct the management decisions of an entity, or (ii) an 
    ownership interest of 50% or greater unless a person or entity other 
    than Respondent has the right to direct the management decisions of 
    such entity.
        C. ``Commission'' means the Federal Trade Commission.
        D. ``Columbus Cable Television System Assets'' means either TCI's 
    Cable Television System or TeleCable's Cable Television System now 
    operating in Muscogee and Harris Counties, Georgia, including all 
    properties, privileges, rights, interests and claims, real and 
    personal, tangible and intangible, of every type and description that 
    are owned, leased, held or used principally in the provision of Cable 
    Television Service in Muscogee and Harris Counties, including the 
    governmental permits, franchises, intangibles, equipment and real 
    property.
        E. ``Designated Columbus Cable Television System'' means the Cable 
    Television System chosen by TCI pursuant to Paragraph III B. 2. or if 
    TCI fails to designate a Cable Television System pursuant to, and 
    within the time limits of, Paragraph III B. 2., the Columbus Cable 
    Television System Assets.
        F. ``Cable Television Service'' means the delivery of various video 
    entertainment and informational programming via a cable television 
    system.
        G. ``Cable Television System'' means a facility, consisting of a 
    set of closed transmission paths and associated signal generation, 
    reception, and control equipment that is designed to provide cable 
    television service, which includes video programming and which is 
    provided to multiple subscribers within a community.
        H. ``The Relevant Geographic Area'' means the counties of Muscogee 
    and Harris in the State of Georgia.
        I. ``Competitiveness, viability and marketability'' of the Columbus 
    Cable Television System Assets means the Respondent shall continue the 
    operation of TCI's and TeleCable's Cable Television Systems in the 
    ordinary course of business without material change or alteration that 
    would adversely affect the value or goodwill of such Cable Television 
    Systems and the Columbus Cable Television System Assets.
    II
        It is further ordered that:
        A. Respondent shall divest, absolutely and in good faith, within 
    twelve months of the date this order becomes final, one of the Cable 
    Television Systems constituting the Columbus Cable Television System 
    Assets. Respondent shall also divest such additional ancillary assets 
    and businesses and effect such arrangements as are necessary to assure 
    the competitiveness, viability and marketability of the Columbus Cable 
    Television System Assets. Respondent shall undertake its best efforts 
    to facilitate any governmental approvals required to effect divestiture 
    of the Columbus Cable Television System Assets and their continued use 
    in Cable Television Service in the Relevant Geographic Area. To ensure 
    the availability of programming to the divested Columbus Cable 
    Television System Assets, Respondent shall waive any exclusive rights 
    to distribute programming by means of Cable Television Systems in the 
    Relevant Geographic Area.
        B. Respondent shall divest the Columbus Cable Television System 
    Assets only to an acquirer or acquirers that receive the prior approval 
    of the Commission and only in a manner that receives the prior approval 
    of the Commission. The purpose of the divestiture of the Columbus Cable 
    Television System Assets is to ensure the continued use of the Columbus 
    Cable Television System Assets as an ongoing, viable deliverer of Cable 
    Television Service in the Relevant Geographic Area, and to remedy the 
    lessening of competition resulting from the proposed acquisition of 
    TeleCable Corporation by TCI as alleged in the Commission's complaint.
        C. Pending divestiture of the Columbus Cable Television System 
    Assets, respondent shall take such actions as are necessary to maintain 
    the competitiveness, viability and marketability of the Columbus Cable 
    Television System Assets and to prevent the destruction, removal, 
    wasting, deterioration, or impairment of any of the Columbus Cable 
    Television System Assets except for ordinary wear and tear.
    III
        It is further ordered that:
        A. If TCI has not divested, absolutely and in good faith and with 
    the Commission's prior approval, the Columbus Cable Television System 
    Assets within twelve months of the date this order becomes final, the 
    Commission may appoint a trustee to divest the Columbus Cable 
    Television System Assets, provided, however, that if the Commission has 
    not approved a proposed divestiture within 120 days of the date the 
    application for such divestiture has been put on the public record, the 
    running of the divestiture period shall be tolled until the Commission 
    approves or disapproves the divestiture. In the event that the 
    Commission or the Attorney General brings an action pursuant to 
    Sec. 5(l) of the Federal Trade Commission Act, 15 U.S.C. Sec. 45(l), or 
    any other statute enforced by the Commission, TCI shall consent to the 
    appointment of a trustee in such action. Neither the appointment of a 
    trustee nor a decision not to appoint a trustee under this Paragraph 
    shall preclude the Commission or the Attorney General from seeking 
    civil penalties or any other relief available to it, including a court-
    appointed trustee, pursuant to Sec. 5(l) of the Federal Trade 
    Commission Act, or any other statute enforced by the Commission, for 
    any failure by the respondent to comply with this order.
        B. If a trustee is appointed by the Commission or a court pursuant 
    to Paragraph III A. of this order, [[Page 9849]] respondent shall 
    consent to the following terms and conditions regarding the trustee's 
    powers, duties, authority, and responsibilities:
        1. The Commission shall select the trustee, subject to the consent 
    of respondent, which consent shall not be unreasonably withheld. The 
    trustee shall be a person with experience and expertise in acquisitions 
    and divestitures in the cable television industry. If respondent has 
    not opposed, in writing, including the reasons for opposing, the 
    selection of any proposed trustee within ten (10) days after notice by 
    the staff of the Commission to respondent of the identity of any 
    proposed trustee, respondent shall be deemed to have consented to the 
    selection of the proposed trustee.
        2. Within ten (10) days after appointment of the trustee, 
    respondent shall (1) execute a trust agreement that, subject to the 
    prior approval of the Commission and, in the case of a court-appointed 
    trustee, of the court, transfers to the trustee all rights and powers 
    necessary to permit the trustee to effect the divestiture required by 
    this order; and (2) notify the trustee in writing whether TCI chooses 
    to divest the TCI Columbus Cable Television System or the TeleCable 
    Columbus Cable Television System; provided that if TCI fails to make 
    this designation within the specified time period, the trustee is 
    authorized to divest either the TCI or TeleCable Columbus Cable 
    Television System.
        3. Subject to the prior approval of the Commission, the trustee 
    shall have the exclusive power and authority to divest the Designated 
    Columbus Cable Television System Assets.
        4. The trustee shall have twelve (12) months from the date the 
    Commission approves the trust agreement described in Paragraph III B. 
    2. to accomplish the divestiture, which shall be subject to the prior 
    approval of the Commission. If, however, at the end of the twelve-month 
    period, the trustee has submitted a plan of divestiture or believes 
    that divestiture can be achieved within a reasonable time, the 
    divestiture period may be extended by the Commission, or, in the case 
    of a court-appointed trustee, by the court; provided, however, the 
    Commission may extend this period only two (2) times.
        5. The trustee shall have full and complete access to the 
    personnel, books, records and facilities related to the Designated 
    Columbus Cable Television System Assets or to any other relevant 
    information as the trustee may reasonably request. Respondent shall 
    develop such financial or other information as such trustee may 
    reasonably request and shall cooperate with the trustee. Respondent 
    shall take no action to interfere with or impede the trustee's 
    accomplishment of the divestitures. Any delays in divestiture caused by 
    respondent shall extend the time for divestiture under this Paragraph 
    in an amount equal to the delay, as determined by the Commission or, 
    for a court-appointed trustee, by the court.
        6. The trustee shall use his or her best efforts to negotiate the 
    most favorable price and terms available in each contract that is 
    submitted to the Commission, subject to respondent's absolute and 
    unconditional obligation to divest at no minimum price. The divestiture 
    shall be made in the manner and to the acquirer or acquirers as set out 
    in Paragraph II of this order; provided, however, if the trustee 
    receives bona fide offers from more than one acquiring entity, and if 
    the Commission determines to approve more than one such acquiring 
    entity, the trustee shall divest to the acquiring entity or entities 
    selected by respondent from among those approved by the Commission.
        7. The trustee shall serve, without bond or other security, at the 
    cost and expense of respondent, on such reasonable and customary terms 
    and conditions as the Commission or a court may set. The trustee shall 
    have the authority to employ, at the cost and expense of respondent, 
    such consultants, accountants, attorneys, investment bankers, business 
    brokers, appraisers, and other representatives and assistants as are 
    necessary to carry out the trustee's duties and responsibilities. The 
    trustee shall account for all monies derived from the divestiture and 
    all expenses incurred. After approval by the Commission and, in the 
    case of a court-appointed trustee, by the court, of the account of the 
    trustee, including fees for his or her services, all remaining monies 
    shall be paid at the direction of the respondent, and the trustee's 
    power shall be terminated. The trustee's compensation shall be based at 
    least in significant part on a commission arrangement contingent on the 
    trustee's divesting the Designated Columbus Cable Television System 
    Assets.
        8. Respondent shall indemnify the trustee and hold the trustee 
    harmless against any losses, claims, damages, liabilities, or expenses 
    arising out of, or in connection with, the performance of the trustee's 
    duties, including all reasonable fees of counsel and other expenses 
    incurred in connection with the preparation for, or defense of any 
    claim, whether or not resulting in any liability, except to the extent 
    that such liabilities, losses, damages, claims, or expenses result from 
    misfeasance, gross negligence, willful or wanton acts, or bad faith by 
    the trustee.
        9. If the trustee ceases to act or fails to act diligently, a 
    substitute trustee shall be appointed in the same manner as provided in 
    Paragraph III A. of this order.
        10. The Commission or, in the case of a court-appointed trustee, 
    the court, may on its own initiative or at the request of the trustee 
    issue such additional orders or directions as may be necessary or 
    appropriate to accomplish the divestiture required by this order.
        11. The trustee shall have no obligation or authority to operate or 
    maintain the Designated Columbus Cable Television System Assets.
        12. The trustee shall report in writing to respondent and the 
    Commission every sixty (60) days concerning the trustee's efforts to 
    accomplish divestiture.
    IV
        It is further ordered that respondent shall comply with all terms 
    of the Hold Separate Agreement, attached to this Order and made a part 
    hereof as Appendix I. The Hold Separate Agreement shall continue in 
    effect until such time as the Columbus Cable Television System Assets 
    shall have been divested as required by this order.
    V
        It is further ordered that, for a period of ten (10) years from the 
    date this order becomes final, respondent shall not, without the prior 
    approval of the Commission, directly or indirectly:
        A. Acquire any stock, share capital, equity, or other interest in 
    any concern, corporate or non-corporate, engaged in at the time of such 
    acquisition, or within the two years preceding such acquisition engage 
    in Cable Television Service within the Relevant Geographic Area; or
        B. Acquire any assets used for or previously used for (and still 
    suitable for use for) Cable Television Service within the Relevant 
    Geographic Area.
        Provided, however, that this Paragraph V shall not apply to the 
    acquisition of products or services in the ordinary course of business; 
    and provided further, that this Paragraph V shall not apply to the 
    acquisition of any interest in a concern that is not at the time of the 
    acquisition engaged in Cable Television Service within the Relevant 
    Geographic Area due to the sale within the preceding two years of all 
    assets used for Cable Television Service within [[Page 9850]] the 
    Relevant Geographic Area to another party who intended to operate said 
    assets for Cable Television Service within the Relevant Geographic 
    Area.
    VI
        It is further ordered that:
        A. Within sixty (60) days after the date this order becomes final 
    and every sixty (60) days thereafter until respondent has fully 
    complied with the provisions of Paragraphs II and III of this order, 
    respondent shall submit to the Commission a verified written report 
    setting forth in detail the manner and form in which it intends to 
    comply, is complying, and has complied with Paragraphs II and III of 
    this order. Respondent shall include in its compliance reports, among 
    other things that are required from time to time, a full description of 
    the efforts being made to comply with Paragraphs II and III of the 
    order, including a description of all substantive contacts or 
    negotiations for the divestiture and the identity of all parties 
    contacted. Respondent shall include in its compliance reports copies of 
    all written communications to and from such parties, all internal 
    memoranda, and all reports and recommendations concerning divestiture.
        B. One (1) year from the date this order becomes final, annually 
    for the next nine (9) years on the anniversary of the date this order 
    becomes final, and at other times as the Commission may require, 
    respondent shall file a verified written report with the Commission 
    setting forth in detail the manner and form in which it has complied 
    and is complying with this order.
    VII
        It is further ordered that respondent shall notify the Commission 
    at least thirty (30) days prior to any proposed change in the 
    respondent such as dissolution, assignment, sale resulting in the 
    emergence of a successor corporation, or the creation or dissolution of 
    subsidiaries or any other change that affect compliance obligations 
    arising out of the order.
    VIII
        It is further ordered that, for the purpose of determining or 
    securing compliance with this order, and subject to any legally 
    recognized privilege, upon written request and on reasonable notice to 
    respondent, respondent shall permit any duly authorized representative 
    of the Commission:
        A. Access, during office hours and in the presence of counsel, to 
    inspect and copy all books, ledgers, accounts, correspondence, 
    memoranda and other records and documents in the possession or under 
    the control of respondent relating to any matters contained in this 
    order; and
        B. Upon five days' notice to respondent and without restraint of 
    interference from it, to interview officers, directors, or employees of 
    respondent, who may have counsel present, relating to any matters 
    contained in this order.
    
    Agreement to Hold Separate
    
        This Agreement To Hold Separate (``Agreement'') is by and between 
    Tele-Communications, Inc. (``respondent'' or ``TCI''), a corporation 
    organized, existing, and doing business under and by virtue of the laws 
    of the State of Delaware, with its principal office and place of 
    business at 5619 DTC Parkway, Englewood, Colorado 80111; and the 
    Federal Trade Commission (``Commission''), an independent agency of the 
    United States Government, established under the Federal Trade 
    Commission Act of 1914, 15 U.S.C. Sec. 41, et seq.
        Whereas, respondent entered into an agreement with TeleCable 
    Corporation (``TeleCable''), a Virginia corporation, whereby respondent 
    will acquire the stock of TeleCable and merge TeleCable into TCI 
    Communications, Inc., an entity within TCI (hereinafter the 
    ``Acquisition''); and
        Whereas, the Commission is now investigating the Acquisition to 
    determine if it would violate any of the statutes enforced by the 
    Commission; and
        Whereas, if the Commission accepts the attached Agreement 
    Containing Consent Order (``Consent Agreement''), which would require 
    the divestiture of either the TCI or TeleCable Cable Television System 
    Assets in Columbus, Georgia, the Commission must place the Consent 
    Agreement on the public record for a period of at least sixty (60) days 
    and may subsequently withdraw such acceptance pursuant to the 
    provisions of Section 2.34 of the Commission's Rules; and
        Whereas, the Commission is concerned that if an understanding is 
    not reached, preserving the status quo ante of the TeleCable Columbus 
    Cable Television System Assets during the period prior to the final 
    acceptance and issuance of the Consent Agreement by the Commission 
    (after the 60-day public comment period), divestiture resulting from 
    any proceeding challenging the legality of the Acquisition might not be 
    possible, or might be less than an effective remedy; and
        Whereas, the Commission is concerned that if the Acquisition is 
    consummated, it will be necessary to preserve the Commission's ability 
    to require the divestiture of the assets described in Paragraph II of 
    the Consent Agreement and the Commission's right to have the TeleCable 
    Columbus Cable Television System Assets continue as a viable 
    independent entity; and
        Whereas, the purpose of this Agreement and the Consent Agreement is 
    to:
        (i) preserve the TeleCable Columbus Cable Television System Assets 
    as a viable independent cable television system pending possible 
    divestiture, and
        (ii) remedy any anticompetitive effects of the Acquisition; and
        Whereas, respondent's entering into this Agreement shall in no way 
    be construed as an admission by respondent that the Acquisition is 
    illegal; and
        Whereas, respondent understands that no act or transaction 
    contemplated by this Agreement shall be deemed immune or exempt from 
    the provisions of the antitrust laws or the Federal Trade Commission 
    Act by reason of anything contained in this Agreement.
        Now, therefore, the parties agree, upon understanding that the 
    Commission has not yet determined whether the Acquisition will be 
    challenged, and in consideration of the Commission's agreement that, 
    unless the Commission determines to reject the Consent Agreement, it 
    will not seek further relief from respondent with respect to the 
    Acquisition, except that the Commission may exercise any and all rights 
    to enforce this Agreement and the Consent Agreement to which it is 
    annexed and made a part thereof, and in the event the required 
    divestiture is not accomplished, to appoint a trustee to seek 
    divestiture pursuant to the Consent Agreement and to seek civil 
    penalties or a court-appointed trustee or other equitable relief, as 
    follows:
        1. Respondent agrees to execute and be bound by the attached 
    Consent Agreement.
        2. Respondent agrees that from the date this Agreement is accepted 
    until the earliest of the dates listed in subparagraphs 2.a-2.b, it 
    will comply with the provisions of paragraph 3 of this Agreement:
        a. three (3) business days after the Commission withdraws its 
    acceptance of the Consent Agreement pursuant to the provisions of 
    Section 2.34 of the Commission's Rules; or
        b. the day after the divestiture required by the Consent Agreement 
    has been completed.
        3. To ensure the independence and viability of the TeleCable 
    Columbus [[Page 9851]] Cable Television System Assets and to assure 
    that no competitive information is exchanged between the TeleCable 
    Columbus Cable Television System and the TCI Columbus Cable Television 
    System, TCI shall operate the TeleCable Columbus Cable Television 
    System separate and apart on the following terms and conditions:
        a. To the maximum extent possible, TCI will retain current 
    TeleCable Columbus Cable Television System management and employees 
    (``the management team'') to manage and maintain the TeleCable Columbus 
    Cable Television System. The individuals on the management team shall 
    manage the TeleCable Columbus Cable Television System independently of 
    the management of TCI's other businesses, including the TCI Columbus 
    Cable Television System. The individuals on the management team shall 
    not be involved in any way in the operation or management of any other 
    TCI Cable Television System. If any member of the management team is 
    unable or unwilling to continue to serve in his or her current position 
    (or becomes unable to do so during the term of this Agreement) that 
    position will be filled by an individual not involved in any way in the 
    operation or management of any other TCI Cable Television System.
        b. The management team, in its capacity as such, shall report 
    directly and exclusively to an individual to be designated by TCI who 
    has no direct responsibilities for Cable Television System operations 
    and who is competent to assure the continued viability and 
    competitiveness of the TeleCable Columbus Cable Television System 
    (``TCI Contact'').
        c. TCI shall not exercise direction or control over, or influence 
    directly or indirectly the management team or any of its activities 
    relating to the operations of the TeleCable Columbus Cable Television 
    System; provided, however, that TCI may exercise such direction and 
    control over the management team and the TeleCable Columbus Cable 
    Television System Assets as is necessary to ensure compliance with this 
    Agreement and with the Consent Agreement and with all applicable laws.
        d. TCI shall maintain the marketability, viability, and 
    competitiveness of the TeleCable Columbus Cable Television System 
    assets and shall not sell, transfer, encumber (other than in the 
    ordinary course of business), or otherwise impair their marketability, 
    viability or competitiveness.
        e. Except for the TCI Contact and the management team, TCI shall 
    not permit any other TCI employee, officer, or director to be involved 
    in the management of the TeleCable Columbus Cable Television System; 
    provided, however, that TCI employees involved in engineering, 
    construction, customer service, data processing, training, human 
    resources, finance, legal services, tax, accounting, insurance, 
    internal audit, payroll, programming, purchasing, real estate, risk 
    management, telephony, compliance with FCC regulations, contract 
    administration, and similar services (``support service employees'') 
    may provide such services to the TeleCable Columbus Cable Television 
    System.
        f. Except as required by law, and except to the extent that 
    necessary information is exchanged in the course of evaluating the 
    acquisition, defending investigations or litigation, or negotiating 
    agreements to divest, TCI, other than the TCI Contact, the management 
    team and support service employees involved in the TeleCable Columbus 
    Cable Television System business, shall not receive or have access to, 
    or the use of any material confidential information about the TeleCable 
    Columbus Cable Television System. (``Material Confidential 
    information,'' as used herein, means competitively sensitive or 
    proprietary information not otherwise known to TCI from sources other 
    than the TCI Contact, the management team involved in the TeleCable 
    Columbus Cable Television System, or the support service employees.)
        g. The management team shall serve at the cost and expense of TCI. 
    TCI shall indemnify the management team against any losses or claims of 
    any kind that might arise out of his or her involvement under this 
    Agreement, except to the extent that such losses or claims result from 
    misfeasance, gross negligence, willful or wanton acts, or bad faith by 
    the management team.
        h. If any member of the management team ceases to act or fails to 
    act diligently, a substitute member shall be appointed.
        4. Should the Federal Trade Commission seek in any proceeding to 
    compel respondent to divest any of the Columbus Cable Television System 
    Assets, as provided in the Consent Agreement, or to seek any other 
    injunctive or equitable relief for any failure to comply with the 
    Consent Agreement or this Agreement, or in any way relating to the 
    Acquisition, as defined in the draft complaint, respondent shall not 
    raise any objection based upon the expiration of the applicable Hart-
    Scott-Radino Antitrust Improvements Act waiting period or the fact that 
    the Commission has permitted the Acquisition. Respondent also waives 
    all rights to contest the validity of this Agreement.
        5. To the extent that this Agreement requires respondent to take, 
    or prohibits respondent from taking, certain actions that otherwise may 
    be required or prohibited by contract, respondent shall abide by the 
    terms of this Agreement or the Consent Agreement and shall not assert 
    as a defense such contract requirements in any action brought by the 
    Commission to enforce the terms of this Agreement or Consent Agreement.
        6. For the purpose of determining or securing compliance with this 
    Agreement, subject to any legally recognized privilege, and upon 
    written request with reasonable notice to respondent made to its 
    principal office, respondent shall permit any duly authorized 
    representative or representatives of the Commission:
        a. Access during the office hours of respondent and in the presence 
    of counsel to inspect and copy all books, ledgers, accounts, 
    correspondence, memoranda, and other records and documents in the 
    possession or under the control of respondent relating to compliance 
    with this Agreement;
        b. Upon five (5) days' notice to respondent, and without restraint 
    or interference from respondent, to interview officers or employees of 
    respondent, who may have counsel present, regarding any such matters.
        7. This Agreement shall not be binding until approved by the 
    Commission.
    
    Analysis to Aid Public Comment on the Provisionally Accepted Consent 
    Order
    
        The Federal Trade Commission (``Commission'') has accepted for 
    public comment from Tele-Communications, Inc. (``TCI''), an agreement 
    containing consent order. This agreement has been placed on the public 
    record for sixty (60) days from receipt of comments from interested 
    persons.
        Comments received during this period will become part of the public 
    record. After sixty (60) days, the Commission will again review the 
    agreement and the comments received, and will decide whether it should 
    withdraw from the agreement or make final the agreement's order.
        The Commission's investigation of this matter concerns TCI's 
    proposed acquisition of TeleCable Corporation (``TeleCable''). 
    TeleCable is the 18th largest cable company in the United States, and 
    operates 21 cable systems located in 15 states. The Commission's 
    investigation of this matter focused on the Columbus, Georgia, 
    metropolitan area. There are only three cable [[Page 9852]] television 
    providers in Columbus. TCI and TeleCable are the two largest cable 
    television providers in the Columbus area in terms of the number of 
    subscribers and the number of homes passed.
        the agreement containing consent order would, if finally issued by 
    the Commission, settle charges alleged in the Commission's complaint 
    that TCI's acquisition of TeleCable would substantially lessen 
    competition in the distribution of multichannel video programming by 
    cable television in the Columbus, Georgia, area, in violation of 
    Section 7 of the Clayton Act. The nature of such competition to be 
    preserved is actual competition to serve existing homes, hotels, and 
    apartment complexes. The order will also preserve competition for 
    providing cable service to new housing developments and other presently 
    cabled portions of the Columbus area. The Commission's complaint 
    further alleges that TCI's merger agreement with TeleCable violates 
    Section 5 of the Federal Trade Commission Act.
        The order accepted for public comment would require TCI to divest a 
    cable television system in the Columbus, Georgia, area. If TCI fails to 
    divest a system within one year, the order allows the Commission to 
    appointment a trustee to sell a cable system. A hold separate agreement 
    executed in conjunction with the consent agreement requires TCI, until 
    completion of the divestiture (or as otherwise specified), to maintain 
    TeleCable's Columbus cable system separate from TCI's other operations. 
    For ten (10) years from the date the order becomes final, the order 
    would also prohibit TCI, without obtaining prior Commission approval, 
    from acquiring any cable television system in the Columbus, Georgia, 
    area.
        The purpose of this analysis is to invite public comment concerning 
    the consent order. This analysis is not intended to constitute an 
    official interpretation of the agreement and order or to modify their 
    terms in any way.
    
        By direction of the Commission.
    Donald S. Clark,
    Secretary.
    [FR Doc. 95-4280 Filed 2-21-95; 8:45 am]
    BILLING CODE 6750-01-M
    
    

Document Information

Published:
02/22/1995
Department:
Federal Trade Commission
Entry Type:
Notice
Action:
Proposed Consent Agreement.
Document Number:
95-4280
Dates:
Comments must be received on or before April 24, 1995.
Pages:
9847-9852 (6 pages)
Docket Numbers:
File No. 941 0132
PDF File:
95-4280.pdf