<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: July 15, 1994
McCAW CELLULAR COMMUNICATIONS, INC.
A Delaware Commission File I.R.S. Employer
Corporation No. 1-9854 No. 91-1379052
5400 Carillon Point, Kirkland, Washington 98033
Telephone Number (206) 827-4500<PAGE>
<PAGE> 2
Item 5. Other Events.
On July 15, 1994, McCaw Cellular Communications, Inc. (the
"Company") and AT&T Corp. ("AT&T") entered into a stipulation
with the Department of Justice that permits the proposed merger
between the Company and AT&T to be consummated under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 and provides for
the entry of a consent decree imposing certain conditions on the
operations of the merged companies. It is expected that the
decree will be entered by the United States District Court for
the District of Columbia at a later date. A copy of the
complaint, stipulation and decree is attached hereto as Exhibit
99(a).
The closing of the merger remains subject to receipt of
Federal Communications Commission approval and a waiver from the
United States District Court for the District of Columbia as
required by its April 5, 1994 Order in the case entitled United
States v. Western Electric Co. Inc., et al., Civil Action No. 82-
0192, declaring that AT&T's acquisition of the Company's interest
in cellular properties controlled by a Bell Operating Company
would violate Section I(D) of the Modification of Final Judgment
(the "Decree"), United States v. American Telephone and Telegraph
Co., 552 F. Supp. 131, 226-34 (D.D.C. 1982), aff'd sub nom,
Maryland v. United States, 460 U.S. 1001 (1983). AT&T has filed
its request for such waiver and oral argument is scheduled for
July 21. There can be no assurance as to whether, or when, the
Court will grant any such waiver or modification.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial statements of businesses to be acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
Exhibit
Number Description
99(a) Complaint, stipulation and decree, dated July
15, 1994<PAGE>
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
McCAW CELLULAR COMMUNICATIONS, INC.
ANDREW A. QUARTNER
-------------------------------
Andrew A. Quartner
Senior Vice President-Law
Date: July 18, 1994<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number
99(a) Complaint, stipulation and decree, dated July 15,
1994
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 94-CV01555 HH6
AT&T CORP. and McCAW CELLULAR )
COMMUNICATIONS, INC. )
)
Defendants. )
COMPLAINT
The United States of America, acting under the direction of
the Attorney General of the United States, brings this civil
action to obtain equitable relief against the Defendants named
herein and complains and alleges as follows:
1. AT&T Corp. ("AT&T") and McCaw Cellular Communications,
Inc. ("McCaw") have agreed to merge. AT&T is the dominant
supplier of interexchange services to both landline and cellular
customers in the United States. AT&T is also the largest
supplier of cellular infrastructure equipment in the United
States. McCaw is the largest provider of cellular services in
the United States. McCaw is a major supplier of interexchange
services to cellular customers in many markets in the United
States. The proposed merger is likely to reduce competition in
the United States in the markets for cellular service, cellular
infrastructure equipment and interexchange services to cellular
customers. The proposed merger would (a) increase AT&T's
incentives and abilities to disadvantage its locked in equipment
customers that currently compete against McCaw in the provision
of cellular services, (b) provide AT&T with access to
competitively sensitive information that McCaw obtains from its
cellular infrastructure equipment supplier that currently
competes with AT&T and (c) reduce competition in the provision of
interexchange services to cellular customers. The result is
likely to be higher prices and lower quality services for
consumers.
I.
JURISDICTION AND VENUE
2. This complaint is filed under Section 15 of the Clayton
Act, as amended, 15 U.S.C. Section 25, to prevent and restrain
the violation by the Defendants, as hereinafter alleged, of
Section 7 of the Clayton Act, as amended, 15 U.S.C. Section 18.
This Court has jurisdiction of the subject matter of this action
and of each of the parties pursuant to Section 12 of the Clayton
Act, 15 U.S.C. Section 22, and 28 U.S.C. Sections 1331 and 1337.
3. Defendant AT&T transacts business and is found in the
District of Columbia within the meaning of Section 12 of the
Clayton Act, 15 U.S.C. Section 22.
4. Defendant McCaw transacts business and is found in the
District of Columbia within the meaning of Section 12 of the
Clayton Act, 15 U.S.C. Section 22.
5. Venue is properly based in the District of Columbia
under 15 U.S.C. Section 22 and 28 U.S.C. Section 1391(b) and (c).
II.
DEFENDANTS
6. AT&T is a corporation organized and existing under the
laws of the State of New York, with its principal office in New
York, New York.
7. McCaw is a corporation organized and existing under the
laws of the State of Delaware, with its principal office in
Kirkland, Washington.
8. The activities of the Defendants are within the flow
of, and substantially affect, interstate commerce.
III.
TRADE AND COMMERCE
Cellular Service
9. "Cellular service" means the Domestic Public Cellular
Radio Telecommunications Services provided pursuant to Part 22,
Subpart K of the Rules of the Federal Communications Commission
("FCC"), 47 C.F.R. Sections 22.9000 - 22.945, whether provided
solely or principally on those frequencies designated in 47
C.F.R. Section 22.902. Cellular service is fully interconnected
with the landline telephone networks, and subscribers can both
originate calls to and receive calls from landline subscribers,
including long distance calls, as well as to and from other
cellular subscribers. Cellular systems offer many of the
services provided by landline systems, such as call waiting, call
forwarding, and voice mail.
10. Cellular carriers operate on either of two bands of
radio frequencies referred to as the "A-side" and the "B-side."
The FCC awarded A-side and B-side licenses separately in 306
metropolitan areas referred to as MSAs and 428 rural areas called
RSAs. Initially, the FCC awarded the B-side license to the local
telephone company or an affiliate thereof and the A-side license
to firms other than the local telephone company. Cellular
licenses are transferable and since the initial awards there has
been considerable consolidation of ownership. Local telephone
companies or related entities have acquired numerous A-side
licenses outside of the areas in which they provide local
exchange service. With extremely limited exceptions, there are
no other providers of cellular services or comparable mobile
telephone services.
11. Cellular service is a relevant product market. The
relevant geographic markets are those service areas in which the
FCC has licensed two facilities-based cellular carriers to
provide cellular service. At the current time, the holders of
these cellular licenses, including McCaw, exercise market power
in the provision of cellular service. These duopolies are
characterized by rapidly growing demand and minimal price
competition resulting in high margins to cellular carriers.
While the Commission's rules permit other parties to purchase
cellular service wholesale and to resell the services of the two
licensed carriers in each service area, resellers have not had
substantial ability to influence wholesale pricing and
accordingly have not substantially stimulated price competition
for cellular services.
12. McCaw is the largest provider of cellular service in
the United States, with ownership interests in cellular systems
serving approximately 22 percent of all of the cellular
subscribers in the United States. These systems include the
following cities, among others: New York, Los Angeles, Miami,
Dallas, Houston, San Francisco, Philadelphia, Pittsburgh,
Seattle, Portland, St. Louis and Kansas City. McCaw owns and
operates a number of these systems in partnership with companies
that also operate B-side systems in other service areas. These
companies include AirTouch Communications, Inc. (previously
PacTel Mobile Services) and BellSouth Corporation. McCaw
operates a number of its cellular systems under the name
"Cellular One," a tradename owned by a joint venture among a
number of A-side licensees, including McCaw and Southwestern Bell
Corp.
13. A cellular system consists primarily of one or more
mobile telephone switching offices ("MTSOs" or "switches")
connected to numerous cell sites. A cell site is a radio
facility that receives and transmits cellular calls. The
principal components of a cell site are radio units, radio frames
and software (referred to collectively as "radio base stations").
A switch is a large central facility connected to cell sites,
other MTSOs, and local and long-distance telephone networks via
wire or microwave links. The MTSO controls the "handoff' of
calls between the cells and transfers calls between the cellular
systems and the wireline networks of local exchange carriers and
interexchange carriers. A cellular system in a large
metropolitan area such as New York or Baltimore/Wasbington, D.C.
might typically include two to four switches and more than one
hundred base stations.
14. Cellular carriers provide cellular service by dividing
their licensed service areas into "cells," which permits cellular
carriers to reuse radio channel frequencies within the same
system. The principal method of expanding the capacity of a
cellular system is to increase the number of cells. The creation
of these new cells requires the purchase and deployment of an
additional radio base station for each new cell. At some point
in expanding the capacity of a system it also becomes necessary
to add additional switches.
15. In North America, cellular switches made by one
manufacturer are not compatible with radio base stations made by
another. Accordingly, a cellular carrier seeking to expand the
capacity of a particular system must obtain additional switches
and radio base stations from its incumbent cellular
infrastructure equipment supplier.
16. Cellular carriers are critically dependent on their
equipment vendors for ongoing engineering support and
maintenance, as well as for efficiency and service-enhancing
features. Enhancements that add customer features or improve a
system's capacity or efficiency are added to systems primarily
through software upgrades. Because the interfaces between the
cellular infrastructure hardware and software are also
proprietary, the equipment vendor is the only one who can provide
these enhancements.
17. Thus, once a cellular carrier has made the decision to
deploy a particular vendor's cellular infrastructure equipment in
a particular system, that carrier becomes locked in to that
vendor and must either continue to purchase equipment and
software from that same vendor or incur the substantial
difficulties and costs of replacing the deployed switches and
radio base stations of the incumbent vendor. As cellular systems
grow, so also does the cost of switching vendors.
18. Equipment providers also necessarily have access to
proprietary and competitively sensitive information of their
cellular carrier customers. Some of this information is acquired
in the provision of installation, maintenance and other services
provided by the manufacturers to the cellular carriers. For
example, through its access to a cellular carrier's switch, a
manufacturer has access to day-to-day operating information about
the switch, including usage patterns. Manufacturers must also
receive advance notice of planned system expansions so that they
may allocate equipment and other resources to that customer.
Manufacturers also work closely with their customers in the
development of new services and features -- sometimes on a
proprietary basis. This development work necessarily provides
the manufacturer with insights into, and advance notice of; its
cellular carrier customer's marketing and sales plans.
19. Cellular infrastructure equipment is a relevant product
market. AT&T is currently the industry leader in installed base
of cellular infrastructure equipment in the United States. AT&T,
along with the next two largest suppliers -- Motorola and L. M.
Ericsson -- account for the vast preponderance of the installed
base of cellular infrastructure equipment in the United States.
North America is the appropriate relevant geographic market.
20. In the majority of the cities in which McCaw has an
interest in the A-side cellular system, the B-side competitor has
deployed and is operating its system on AT&T cellular
infrastructure equipment. Major markets in which McCaw competes
with AT&T customers include New York, Dallas, San Francisco,
Miami, Philadelphia, St. Louis, Tampa, Orlando, Salt Lake City,
Kansas City and Pittsburgh. McCaw uses Ericsson equipment in the
majority of its systems.
21. AT&T currently has the ability to raise the costs,
inhibit the ability to increase system capacity and capabilities
and degrade the quality of service of its locked-in-B-side
equipment customers. AT&T could achieve this by increasing the
prices of its equipment and software or by withholding or
delaying the development or delivery of necessary equipment,
software, services or other upgrades.
22. The proposed merger may harm competition in the
cellular services markets. First, AT&T has no strong incentive
currently to advantage one cellular carrier customer vis-a-vis
another. As a result of this merger, however, AT&T would gain
the incentive to advantage McCaw over its AT&T-equipped cellular
service competitors by exploiting AT&T's control over the costs,
capabilities and capacity of those locked-in equipment customers.
Second, as a further result of the merger, McCaw will have access
to competitively sensitive or proprietary information of McCaw's
competitors that AT&T acquires through its role as cellular
infrastructure equipment supplier to McCaw's competitors.
23. The proposed merger may also harm competition in the
cellular infrastructure equipment market, by giving AT&T access
to competitively sensitive or proprietary information of Ericsson
that McCaw acquires through its position as a customer for and
user of Ericsson cellular infrastructure equipment.
Interexchange Services
24. Interexchange services are telecommunications services
that connect calls between different local exchange areas or
local cellular service areas. AT&T is the dominant interexchange
carrier for both wired and cellular telephone service, with MCI
and Sprint and a number of smaller firms having much smaller
shares.
25. The provision of interexchange services to cellular
subscribers is a relevant product market. Customers use cellular
phones to meet their needs away from landline telephones' access
to interexchange service over landline telephones is inconsistent
with the needs motivating cellular phone usage and thus is not a
substitute. Cellular subscribers may only use interexchange
service providers that have exchange access to that cellular
system.
26. Due to the lack of effective competition in the
cellular services markets, McCaw has been able to deny its
cellular customers the ability to select their interexchange
service provider. In those markets in which McCaw is not
partnered with a Bell company subject to equal access
requirements, McCaw uses its own facilities and facilities leased
from AT&T to resell AT&T interexchange service (under a McCaw
brand) to its cellular customers, and does not permit its
customers to access directly other carriers for interexchange
service. On the B-side systems operated by Bell companies
subject to equal access requirements, interexchange service is
provided by the interexchange carrier of the customer's choice.
27. Thus, in those markets where McCaw is able to bundle
local cellular and interexchange services, customers may choose
between McCaw's A-side bundle of local and interexchange services
or the B-side carrier's local cellular service and where the B-
side carrier is a Bell company, the ability to directly access
the interexchange service offered by the customer's interexchange
carrier of choice. The relevant geographic markets are cellular
service areas in which McCaw offers bundled cellular and
interexchange services, including New York, Miami, Tampa,
Minneapolis, Seattle, Pittsburgh, New Orleans, Portland and
Sacramento.
28. The markets in which AT&T and McCaw compete in the
provision of interexchange services to cellular subscribers are
highly concentrated. On the B-side, AT&T is the dominant
interexchange carrier with more than 70% of subscribers, with MCI
and Sprint sharing nearly all of the remainder. On the A-side,
McCaw generally is the exclusive provider of interexchange
service to customers of its systems that do not provide equal
access.
29. The merger may substantially lessen competition in the
markets for the provision of interexchange services to cellular
subscribers by eliminating competition between the two largest
providers of interexchange service in these highly concentrated
markets, and by combining AT&T, the leading provider of
interexchange services in these markets, with McCaw, which has
market power over the provision of interexchange services to
cellular service subscribers by virtue of the fact that it is not
required to provide equal access to interexchange competitors.
IV.
VIOLATION ALLEGED
30. The United States repeats and realleges the allegations
contained in Paragraphs 1 through 29 of this Complaint.
31. Pursuant to a merger agreement dated August 16, 1993,
AT&T and McCaw intend to consolidate or merge their businesses.
32. The effect of the combination of AT&T and McCaw may be
to substantially lessen competition in interstate trade and
commerce in Violation of Section 7 of the Clayton Act, 15 U.S.C.
Section 18, in the following ways, among others:
a. Decreasing competition in the provision of
cellular services because the combined AT&T-McCaw will have
the increased incentive and ability to raise the costs of
cellular carriers that compete with McCaw or threaten to do
so and thereby to discourage competition by their duopoly
rivals.
b. Decreasing competition in the market for cellular
infrastructure equipment by providing AT&T with access to
proprietary and commercially sensitive information of
Ericsson that McCaw acquires as a customer and user of
Ericsson cellular infrastructure equipment.
c. Decreasing competition in the provision of
interexchange services to cellular subscribers in the
relevant geographic markets because the merger will combine
the two dominant competitors in those markets in which AT&T
and McCaw compete.
V.
REQUEST FOR RELIEF
WHEREFORE, plaintiff prays:
1. That AT&T's proposed consolidation and merger with
McCaw be adjudged a violation of Section 7 of the Clayton Act.
2. That a permanent injunction be issued preventing and
restraining the Defendants and all persons acting on their behalf
from consummating the merger agreement alleged in Paragraph 31.
3. That the Court impose such additional equitable relief
it deems necessary and proper.
Dated: July 15, 1994
ANNE K. BINGAMAN RICHARD L. LIEBESKIND
- ------------------------ -------------------------
Anne K. Bingaman Richard L. Liebeskind
Assistant Attorney General Assistant Chief, Communications
& Finance Section
STEVEN C. SUNSHINE LUIN P. FITCH
- ------------------------ -------------------------
Steven C. Sunshine Luin P. Fitch
Deputy Assistant Attorney
General JONATHAN D. LEE
-------------------------
Jonathan D. Lee
CONSTANCE K. ROBINSON BRENT E. MARSHALL
- ------------------------ -------------------------
Constance K. Robinson Brent E. Marshall
DEBORAH R. MAISEL
-------------------------
Deborah R. Maisel
RICHARD L. ROSEN PATRICK J. PASCARELLA
- ------------------------ -------------------------
Richard L. Rosen Patrick J. Pascarella
DON A. RESNIKOFF
-------------------------
Don A. Resnikoff
N. SCOTT SACKS
-------------------------
N. Scott Sacks
KATHLEEN M. SOLTERO
-------------------------
Kathleen M. Soltero
ROBERT ZASTROW
-------------------------
Robert Zastrow
Attorneys
Communications & Finance Section
Antitrust Division
U.S. Department of Justice
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-5813
<PAGE>
<PAGE>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
)
Plaintiff, )
)
)
v. ) Civil Action No.
) 94-CV01555 HH6
)
AT&T CORP. and McCAW CELLULAR )
COMMUNICATIONS, INC. )
)
Defendants. )
STIPULATION
It is stipulated by and between the undersigned parties, by
their respective attorneys, that:
1. The parties consent 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. Section 16, and without
further notice to any party or other proceedings, provided that
plaintiff has not withdrawn its consent.
2. The parties shall abide by and comply with the
provisions of the proposed Final Judgment pending entry of the
Final Judgment, unless AT&T or McCaw certify to the Department
that this transaction has been abandoned, and withdraw its
applicable filing made under the Hart-Scott-Rodino Antitrust
Improvements Act, 15 U.S.C. Section 18a, in which case the
proposed Final Judgment or Final Judgment will be withdrawn or
vacated and the action dismissed.
3. Plaintiff may withdraw its consent to this proposed
Final Judgment 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. In the event plaintiff withdraws its
consent or if the proposed Final Judgment is not entered pursuant
to this Stipulation, this Stipulation will be of no effect
whatever, and the making of this Stipulation shall be without
prejudice to any party in this or any other proceeding.
4. In the event of a final and unappealable order
determining that entry of this Final Judgment would be contrary
to the public interest, or otherwise constituting a decision on
the merits that the proposed Final Judgment should not be
entered, and absent other agreement between these parties, the
parties will continue to abide by and comply with Section III of
this Final Judgment until this action is finally adjudicated or
dismissed.
5. The stipulation by the United States to entry of this
Final Judgment is not intended to, does not, and shall not be
deemed to constitute a statement of position by the United States
as to the appropriate scope of local cellular service areas.
Notwithstanding any provision of the Final Judgment, the United
States may at any appropriate time seek orders from the Court
eliminating one or more of the exceptions to the general
definition of Local Cellular Service Areas contained in Section
II.Q of the Final Judgment.
6. AT&T and McCaw hereby stipulate that it will not move
to modify the Final Judgment, if entered in the form attached
hereto, for eighteen months following commencement of this
action, except with the consent of the United States.
7. AT&T hereby irrevocably waives any right it may have to
appeal or otherwise challenge in any court any determination by
the United States or any independent fact-finder pursuant to
Section V.E of the Final Judgment, if entered in the form
attached hereto.
Dated: July 15, 1994
RICHARD L. ROSEN
--------------------------
Anne K. Bingaman Richard L. Rosen
Assistant Attorney General Chief
Steven C. Sunshine Richard Liebeskind
Deputy Assistant Attorney Assistant Chief
General
Antitrust Division Luin P. Fitch, Jr.
U.S. Department of Justice Jonathan E. Lee
Washington, D.C. 20530 Deborah R. Maisel
Brent E. Marshall
Patrick J. Pascarella
Don Allen Resnikoff
N.Scott Sacks
Kathleen M. Soltero
Robert J. Zastrow
Attorneys
Communications and Finance
Section
Antitrust Division
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-5621
Attorneys for the United States
MARK C. ROSENBLUM
---------------------------
John D. Zeglis
Mark C. Rosenblum
AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
(908) 221-3539
Attorneys for AT&T Corp.
DOUGLAS I. BRANDON
---------------------------
Douglas I. Brandon
McCaw Cellular Communications,
Inc.
1150 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 223-9222
Attorneys for McCaw Cellular
Communications, Inc.
<PAGE>
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 94-___________
AT&T CORP. and McCAW CELLULAR )
COMMUNICATIONS, INC., )
)
Defendants. )
FINAL JUDGMENT
Plaintiff, the United States of America, having filed its
complaint herein on July 15, 1994; the parties, by their
respective attorneys, having consented to the entry of this Final
Judgment; and without this Final Judgment constituting any
evidence or admission by any party with respect to any issue of
fact or law herein;
Now, therefore, before the taking of any testimony, without
trial or adjudication of any issue of fact or law, and upon the
consent of the parties, it is hereby
ORDERED, ADJUDGED, and DECREED as follows:
I.
JURISDICTION
This Court has jurisdiction over the parties and the subject
matter of this action. The Complaint states a claim upon which
relief may be granted against the defendants under Section 7 of
the Clayton Act, as amended (15 U.S.C. Section 18).
II.
DEFINITIONS
As used in this Final Judgment:
A. "Affiliate" means a corporation or partnership in which
AT&T or McCaw, as the case may be, has a direct or indirect
voting interest of greater than fifty percent, or the right,
power or ability to control.
B. "AT&T" means AT&T Corp. and its Affiliates other than
McCaw.
C. "AT&T Equipped Cellular System" means a Cellular System
in which the Cellular Carrier has obtained Cellular
Infrastructure Equipment from AT&T.
D. "AT&T Network Wireless Infrastructure Unit" means the
division, subsidiary or other business organization of AT&T's
telecommunications equipment manufacturing subsidiary ("AT&T
Network Systems") that manufactures Cellular and Wireless
Infrastructure Equipment.
E. "Cellular Carrier" means an entity that is a carrier
within the meaning of the Communications Act of 1934 and that
provides Cellular Services.
F. "Cellular Digital Packet Data Services" means a service
that is offered in accord with Internet TCP/IP Protocol Suite and
OSI Suite as defined by Internet RFC 791 or any functionally
equivalent service in which multiprotocol network services
providing wireless packet data to wireless communications users
are offered by delivering data to a centralized switching or
routing point from which the data is transferred or routed to a
destination in the Local Cellular Service Area (which may be an
Internet node) designated by the customer or to an Interexchange
Carrier chosen by the customer on an unbundled and
nondiscriminatory basis at a point within the Local Cellular
Service Area in which the centralized switching or routing point
is located.
G. "Cellular Infrastructure Equipment" means cell sites,
mobile switching equipment, and other telecommunications products
(hardware and software) which are purchased by Cellular Carriers
for the provision of Cellular Services. It does not include
transmission media or other Telecommunications Equipment not
specifically developed for use in a Cellular System (e.g., cable
or fiber) unless such equipment is not compatible with other
manufacturers' Cellular Infrastructure Equipment. It does
include the equipment used to terminate transmission media (e.g.,
D4 channel banks) and the radio equipment used to transmit
telecommunications within a Cellular System.
H. "Cellular Services" mean the Domestic Public Cellular
Radio Telecommunications Services provided pursuant to Part 22,
subpart K of the Rules of the Commission (47 C.F.R. Sections
22.900 - 22.945), whether provided solely or principally on those
frequencies designated in 47 C.F.R. Section 22.902.
I. "Cellular System" means the integrated mobile
switching, cell sites, and other facilities which are operated or
controlled by a Cellular Carrier and used to provide Cellular
Services in an area.
J. "Commission" means the Federal Communications
Commission.
K. "Control" means the power to direct or to cause the
direction of the management and policies of a corporation or a
partnership, whether through ownership of voting securities, by
contract, or otherwise.
L. "Development Team" means a discrete and identified
group of employees responsible for the development of
Telecommunications Equipment, i.e., the design and development of
technology platforms, products (including associated
documentation and training), and associated engineering and
testing. The specific responsibilities of Development Teams may
be modified in compliance plans filed pursuant to Section VII.A
of this Final Judgment.
M. "Exchange Access" means services, functions, and
activities that a cellular carrier performs, or may hereafter
choose to perform, in connection with the origination, routing,
or termination of interexchange calls.
N. "Interexchange Carrier" means a firm that is a carrier
within the meaning of the Communications Act and that provides
Interexchange Services.
O. "Interexchange Services" means telecommunications
service for hire between one of the Local Cellular Service Areas
specified in paragraph II(Q) and a point in some other area.
P. "Interexchange Traffic Routing" means sorting
interexchange calls by destination and routing calls over
different trunk groups or other facilities depending on the
call's destination.
Q. "Local Cellular Service" means the provision of
Cellular Service between points within areas ("Local Cellular
Service Areas") in which the Bell Operating Companies or their
affiliates are authorized today, or hereafter become authorized,
to provide cellular exchange services without any equal access
obligation under the provisions of the MFJ, any orders entered
under it, or any legislation that supersedes or modifies it,
including generic orders that for the purposes of this Final
Judgment shall be construed to apply to McCaw Cellular Systems as
if such Cellular Systems were Bell Operating Companies' Cellular
Systems, except that, for purposes of this order, and subject to
further order of this Court: (i) the Spokane (Washington) LATA
676 shall include all of Yakima MSA 191; (ii) the Seattle
(Washington) LATA 674 shall include Tacoma MSA 82; (iii) the
Portland (Oregon) LATA 672 shall include Eugene MSA 135, Medford
MSA 229 and Salem MSA 148; (iv) the Minneapolis (Minnesota) LATA
628 shall include Minneapolis MSA 15, Rochester MSA 288, and St.
Cloud MSA 198; (v) the Los Angeles (California) LATA 730 shall
include Ventura MSA 73; (vi) the San Luis Obispo (California)
LATA 740 shall include Santa Barbara MSA 124; (vii) the Stockton
(California) LATA 738 shall include Stockton MSA 107; (viii) the
Sacramento (California) LATA 726 shall include Sacramento MSA 35,
Redding MSA 254, Yuba City MSA 274, Reno MSA 171, and Chico MSA
215; (ix) the Fresno (California) LATA 728 shall include Visalia
MSA 150; (x) the Austin (Texas) LATA 558 shall include Austin MSA
75 and Bryan-College Station MSA 287; (xi) the Waco (Texas) LATA
556 shall include Killeen-Temple MSA 160; (xii) the Shreveport
(Louisiana) LATA 486 shall include Texarkana MSA 240, and
Longview MSA 206; (xiii) the Lafayette (Louisiana) LATA 488 shall
include Lafayette MSA 174; (xiv) the Dallas (Texas) LATA 552
shall include Sherman-Dennison MSA 292; (xv) the Little Rock
(Arkansas) LATA 528 shall include Pine Bluff MSA 291; (xvi) the
Tulsa (Oklahoma) LATA 538 shall include Tulsa MSA 57,
Fayetteville MSA 182, Fort Smith MSA 165, Springfield MSA 163,
and Joplin MSA 239; (xvii) the Jacksonville (Florida) LATA 452
shall include Jacksonville MSA 51, Ocala MSA 245, and Tallahassee
MSA 168; (xviii) the Gulf Coast (Florida) LATA 952 shall include
Tampa MSA 22, Sarasota MSA 167, and Lakeland MSA 114; and (xix)
the Pittsburgh (Pennsylvania) LATA 234 shall include Parkersburg
MSA 200, Erie MSA 130, Wheeling MSA 178, Johnstown MSA 143, and
Steubenville MSA 199.
R. "Marketing Account Team" means a discrete and
identified group of employees of AT&T, within AT&T's subsidiary,
division or other business unit responsible for the manufacture
and sale of Telecommunications Equipment, who are engaged in
selling, and providing related services in connection with
selling, Cellular Infrastructure Equipment and other
Telecommunications Equipment to one or more specified customers.
The duties of the Marketing Account Team shall include sales and
account management functions, including customer relationship
management, offer and sale of products and services, pricing of
products and services to customers, preparation and presentation
of bids and proposals, account-level planning and forecasting,
basic technical and engineering advice and support, and contract
management; sales operations functions, including order
processing and management and customer billing; and project
management functions, including ensuring that customer
satisfaction goals for specific products are met and that terms
and conditions of sale are satisfied. The specific
responsibilities of Marketing Account Teams may be modified in
compliance plans filed pursuant to Section VII.A of this Final
Judgment.
S. "McCaw" means McCaw Cellular Communications, Inc., and
its Affiliates, including any McCaw Cellular System.
T. "McCaw Cellular System" means a Cellular System in
which McCaw controls, directly or through its affiliates, a
direct or indirect voting interest of more than fifty percent
(50%), or the right, power or ability to control, including any
Cellular Systems in which AT&T or McCaw acquires such interests
after the commencement of this action.
U. "McCaw Minority Owned Cellular System" means a Cellular
System in which McCaw controls, directly or indirectly, a direct
or indirect voting interest of fifty percent or less, and does
not have the right, power or ability to control, including any
Cellular Systems in which AT&T or McCaw acquires such interests
after the entry of this Final Judgment.
V. "MFJ" means the Modification of Final Judgment entered
in United States v. Western Electric Corp., No. 82-0192, on
August 24, 1982, 552 F. Supp. 131 (D.D.C. 1982); as subsequently
modified.
W. "MTSO" means Mobile Telephone Switching Office and the
equipment used therein.
X. 1. "Nonpublic Information" means information not in
the public domain that is furnished (a) by a Wireless Carrier to
AT&T in AT&T's capacity as a supplier of Wireless Infrastructure
Equipment or (b) by a Wireless Infrastructure Equipment supplier
to McCaw or to McCaw Cellular Systems.
2. To be Nonpublic Information, information must be
one of the following:
(a) information containing costs, profits, or
profit margins; plans for development of new products,
services, or technologies; customer names; pricing
policies, prices, price schedules, or terms; number of
subscribers, sales, churn rates, or other output
measures; capacity measures; features and capabilities;
technology plans or status of implementation; marketing
plans; costs of or prices paid for infrastructure
equipment and other inputs, including price credits, or
adjustments for a cellular carrier's used equipment;
plans for expansion; amounts of capital investment; or
quantities and types of equipment used by a wireless
carrier or sold by a wireless infrastructure equipment
supplier;
(b) other written information designated in
writing by the Wireless Carrier or Wireless
Infrastructure Equipment supplier as proprietary
information by an appropriate legend, marking, stamp,
or positive written identification on the face thereof,
or
(c) other oral, visual, or other information that
is identified as proprietary information in writing by
the Wireless Carrier or Wireless Infrastructure
Equipment supplier prior to or contemporaneously with
its disclosure to AT&T, or in the case of oral, visual,
or other information provided prior to the entry of
this Final Judgment, information that is so identified
within 180 days of the entry of this Final Judgment.
3. "Nonpublic Information" shall not include
(a) information already known to AT&T by means of
its independent research, development, and analysis
activities,
(b) information that subsequently enters the
public domain through no violation by AT&T or McCaw of
this Final Judgment or of any other duty imposed upon
them by law or contract,
(c) information that subsequently is disclosed in
writing to AT&T by a third party not in breach of a
confidentiality agreement with the Wireless Carrier to
whose business the information pertains, or
(d) except in the case of information specified
in subsection (2)(a) of this Section II.X, (i)
information that the party furnishing the information
agrees, in writing, may be disclosed, or (ii)
information that was first disclosed to AT&T or McCaw
over six (6) years previously, or such other period as
agreed to in writing by AT&T and the Wireless Carrier
or Wireless Infrastructure Equipment Supplier that made
the disclosure.
Y. "Proprietary Development" means development by AT&T of
products, features or functions for Cellular Infrastructure
Equipment that is not intended to be made available to more than
one Cellular Infrastructure Equipment customer not affiliated
with each other through substantial common ownership.
Z. "Technical information" means intellectual property of
all types, including, without limitation, patents, copyrights,
know-how and trade secrets, including planning documents,
designs, specifications, standards, practices and procedures, and
training materials.
AA. "Telecommunications Equipment" means products (hardware
or software) other than customer premises equipment purchased by
a carrier to provide telecommunications services.
AB. "Unaffiliated Cellular Infrastructure Equipment
Customer" means a Cellular Carrier that is not an Affiliate of
AT&T or McCaw nor a McCaw Minority Owned Cellular System but that
has purchased or, as of the date of entry of this Final Judgment,
has contracted to purchase, AT&T Cellular Infrastructure
Equipment for use in providing Cellular Service in a Cellular
Service Area.
AC. "Unaffiliated Wireless Infrastructure Equipment
Customer" means a Wireless Carrier that is not an Affiliate of
AT&T or McCaw nor a McCaw Minority Owned Cellular System but that
purchases or contracts to purchase AT&T Wireless Infrastructure
Equipment for use in providing Wireless Service.
AD. "United States" means plaintiff the United States of
America. Unless otherwise delegated by the Attorney General, the
authority under this Final Judgment to act on behalf of the
United States is delegated to the Assistant Attorney General in
charge of the Antitrust Division or to such personnel of the
Antitrust Division as the Assistant Attorney General may
designate.
AE. "Wireless Infrastructure Equipment" means the cell
sites, mobile switching equipment and other Telecommunications
Equipment which is purchased by Wireless Carriers for the
provision of Wireless Services. It does not include transmission
media or other equipment not specifically developed for use in a
Wireless System (e.g., cable or fiber) unless such equipment is
not compatible with other manufacturers' Wireless Infrastructure
Equipment. It does include both the equipment used to terminate
those media (e.g., D4 channel banks) and the radio equipment used
to transmit telecommunications within a Wireless System.
AF. "Wireless Services," "Wireless Systems" and "Wireless
Carriers," respectively, mean those telecommunications services,
systems, or carriers that use radio transmission between the
customer and the network, and includes cellular, land mobile
radio, commercial mobile radio (as defined in 47 U.S.C. Section
332(d)(1), as amended), specialized mobile radio ("SMR"),
personal communications services ("PCS"), and any other mobile
radio services, systems, or carriers that has been or might be
authorized by the Commission or offered using radio transmission
between the customer and the network.
III.
SEPARATION OF McCAW AND AT&T
McCaw and McCaw affiliates that are involved in the
operation of Wireless Systems and the provision of Local Wireless
Services shall be maintained as corporations or partnerships
engaged in such business activities separate from AT&T so long as
any provision of this Final Judgment remains in effect.
Separation for purposes of this Final Judgment requires the
following:
A. McCaw and McCaw affiliates shall be maintained as
corporations or partnerships with separate officers and
personnel, and separate books, financial, and operating records.
B. McCaw and McCaw affiliates shall retain all Wireless
Service licenses and title and control of the Wireless
Infrastructure Equipment used by its Wireless Systems to provide
Wireless Services.
C. McCaw and McCaw affiliates shall retain responsibility
for the operation of their Wireless Systems and the marketing of
their wireless services, and may not by contract or otherwise
delegate substantial responsibility for the performance of such
business activities to AT&T, provided that AT&T may act as
McCaw's agent to the extent authorized in Section IV(F) of this
Final Judgment. Nothing in this Final Judgment shall prohibit
AT&T from providing general corporate overhead and administrative
services to McCaw and McCaw affiliates.
D. AT&T may provide Interexchange Services, Wireless
Infrastructure Equipment and related engineering services, and
services related to the marketing of Wireless Services to McCaw
and McCaw affiliates subject to the provisions of this Final
Judgment, provided that such products and services may be
provided only pursuant to filed tariffs or written contracts
identifying the products and services to be provided, the
principal terms and conditions of their provision, and the prices
therefor.
E. A McCaw Cellular System or McCaw Minority Owned
Cellular System may use the name "AT&T" or any trademark or trade
name of AT&T in its corporate or service names only after such
date as it has completed conversion to equal access and balloted
existing customers pursuant to Sections IV.B and IV.C of this
Final Judgment. McCaw, AT&T and McCaw Minority Owned Systems may
not use the name "AT&T" or any registered trademark or trade name
of AT&T in the national marketing or advertising of any Cellular
Service until 60% of the McCaw Cellular Systems (measured by
subscribers, and without including McCaw Minority Owned Cellular
Systems that provide equal access pursuant to the MFJ) have
completed conversion to equal access.
IV.
EQUAL ACCESS
A. Prior to its conversion to equal access under Sections
IV.B through IV.D, McCaw Cellular Systems may continue existing
arrangements for provision of Interexchange Services. No McCaw
Cellular System shall alter these arrangements in ways that
discriminate in favor of AT&T in the provision of Exchange
Access.
B. Each McCaw Cellular System shall, on a phased-in basis
and no later than 21 months following the commencement of this
action, cease providing Interexchange Services and shall provide
customers of each McCaw Cellular System equal access to any
Interexchange Carrier that offers service to the system by
1. providing each customer with Local Cellular
Service under prices and terms that do not depend upon the
customer obtaining Interexchange Service from AT&T or from
any affiliate of McCaw. Except to the extent specifically
authorized by Section IV.F.1 of this Final Judgment, McCaw,
McCaw Cellular Systems, their employees, and their agents
shall not recommend, sell, or otherwise market the
Interexchange Services of any Interexchange Carriers, and
shall administer Interexchange Carrier selection procedures
on a carrier-neutral and nondiscriminatory basis;
2. permitting each customer automatically to route,
without the use of access codes, all of the customer's
originating interexchange communications to the
Interexchange Carrier of the customer's designation and to
reach other Interexchange Carriers by dialing the
appropriate carrier identification code, with each McCaw
Cellular System prohibited from imposing any charges on its
customers for originating Interexchange calls unless the
charges are nondiscriminatory and imposed regardless of the
identity of a customer's Interexchange Carrier; and
3. providing for each of its existing customers to
designate the Interexchange Carrier of the customer's choice
within 60 days after the System's conversion to equal
access, and thereafter requiring each new customer to
designate the Interexchange Carrier of the customer's
choice. After such date, the McCaw Cellular Systems shall
block Interexchange Services to customers who both fail to
designate an lnterexchange Carrier and place calls without
using access codes, except that they may allocate existing
customers who fail to make such a designation among
Interexchange Carriers in proportion to the number of
customers subscribing to each of these Interexchange
Carriers.
C. Each McCaw Cellular System shall provide complete lists
of its Cellular Service customers' names and addresses to
Interexchange Carriers unaffiliated with McCaw or AT&T for use
solely in connection with marketing their Interexchange Services
to customers of that McCaw Cellular System at least sixty days
prior to the system's conversion to equal access and at quarterly
intervals thereafter. If customers' names, addresses, telephone
numbers or other information are provided to or used by AT&T for
the purpose of marketing Interexchange Services, the lists shall
be provided to other Interexchange Carriers at the same time and
under the same terms. A McCaw Cellular System shall not provide
AT&T with information about a cellular customer's Interexchange
Carrier or the customer's Cellular or Interexchange Service usage
unless (a) the customer is already a customer of AT&T's
Interexchange Services, and (b) the McCaw Cellular System
provides other Interexchange Carriers with the same information
concerning their customers at the same time and under the same
terms.
D. After its conversion to equal access, each McCaw
Cellular System shall
1. provide to all Interexchange Carriers Exchange
Access on an unbundled basis that is equal in type, quality,
and price to that provided to AT&T. Each McCaw Cellular
System shall allow access to MTSOs through switched
connections by way of local exchange carrier access tandems,
and shall provide to the lnterexchange Carrier dialed
digits, automatic calling number identification and other
information necessary to bill calls, answer supervision,
carrier access codes, and testing and maintenance of
whatever facilities of the cellular system are used by
Interexchange Carriers, regardless of whether any of these
services are provided to AT&T. A McCaw Cellular System
shall be required to offer to each unaffiliated
Interexchange Carrier to establish dedicated access
connections to MTSOs, to perform billing services on
reasonable terms, to provide interexchange traffic routing
services, provide customer location information for use in
routing calls, and to perform other activities or functions
for Interexchange Carriers in connection with the
origination, routing, or termination of interexchange calls
in the same manner as and on the same terms and conditions,
including price, that those services, activities, or
functions are provided to AT&T. If a McCaw Cellular System
provides information to AT&T to allow it to bill its
Interexchange Service customers for Cellular Service, it
shall at each unaffiliated Interexchange Carriers option
provide sufficient information about the usage and charges
for Cellular Service to other Interexchange Carriers to
allow them to make commercially reasonable arrangements to
bill their customers for Cellular Service.
2. be prohibited from discriminating in favor of AT&T
(a) in providing in a timely manner technical or other
information about the Cellular System or its customers, (b)
in the interconnection or use of the McCaw Cellular System's
service and facilities or in the charges for each element of
service, or (c) in the provision of new Exchange Access
services and the planning for and construction or
modification of facilities used to provide Exchange Access.
3. be prohibited from implementing any new Exchange
Access service, or imposing any charge on Interexchange
Carriers for Exchange Access, unless the service is
available and the charge is applicable to all Interexchange
Carriers and has been announced a minimum of 60 days before
the service is provided or the charge imposed.
E. A Cellular System that becomes a McCaw Cellular System
following the entry of this Final Judgment shall comply with the
provisions of this Section IV within one year of the date on
which it becomes a McCaw Cellular System, or within 21 months of
the commencement of this action, whichever is later.
F. 1. Notwithstanding the provisions of this Section IV,
and following the dates upon which AT&T, McCaw and McCaw Minority
Owned Cellular Systems may use the name "AT&T," its trademarks
and trade names pursuant to Section III of this Final Judgment,
AT&T may act as McCaw's agent in marketing Local Cellular
Services and may jointly market Local Cellular Services,
Interexchange Services and other services, provided that
a. AT&T must advise actual or prospective
subscribers that they have a right to presubscribe to
competing Interexchange Carriers following each McCaw
Cellular System's conversion to equal access;
b. AT&T shall be required to state separately
the prices, terms, and rate plans for Local Cellular
Services and Interexchange Services;
c. AT&T shall not sell or contract to sell
Interexchange Services at a price, term, or discount
that depends upon whether the customer obtains Local
Cellular Service from McCaw; and
d. McCaw or a McCaw Cellular System shall not
sell or contract to sell Local Cellular Service at a
price, term or discount that depends on whether the
customer obtains lnterexchange Service from AT&T.
e. Notwithstanding the provisions of Section
III.C and of this Section IV.F, AT&T may act as McCaw's
agent in marketing Cellular Services before a McCaw
Cellular System or McCaw Minority Owned Cellular System
is converted to equal access under this Section IV,
provided that AT&T markets the Cellular Service under a
McCaw trademark or trade name, AT&T does not market the
Cellular Service in connection with AT&T's
Interexchange Service, and does not use any AT&T
trademark or trade name in marketing McCaw Cellular
Service. The procedures and arrangements for marketing
Cellular Service under this Section IV.E.1.e shall be
described in compliance plans filed pursuant to Section
VII.A of this Final Judgment before being implemented,
except that arrangements for marketing Cellular Service
at AT&T Phone Centers that were in existence before the
commencement of this action may be maintained pending
the effective date of compliance plans.
2. Nothing in this Final Judgment shall prohibit AT&T
from, without separately stating charges for Interexchange
Service and terminating Local Cellular Service, providing
services in which the calling party pays for calls to a
cellular telephone, provided that
a. AT&T obtains any underlying Cellular Services
from McCaw Cellular Systems or McCaw Minority Owned
Cellular Systems at a generally available rate, no
higher than the rate offered to resellers of the
cellular service provided by that McCaw cellular
system; and
b. the McCaw Cellular Systems or McCaw Minority
Owned Cellular Systems (or AT&T) contemporaneously
discloses this rate to the other Interexchange Carriers
serving that system and describes it in the Equal
Access Plan filed for approval by the United States
pursuant to section VIl.A of this Final Judgment.
G. Where there is insufficient demand by Interexchange
Carriers for access to McCaw Cellular Systems within the Local
Cellular Calling Areas specified in Section II(Q), McCaw Cellular
Systems shall be permitted, upon a showing to and certification
by the United States, to offer new services in which access to
Interexchange Carriers is provided at one or more centralized
points. The showing required and the certification provided
pursuant to this Section IV.G shall state specifically the
services to be provided, the access arrangements therefor, and
the centralized points at which access to Interexchange Carriers
is to be provided.
H. Nothing in this Final Judgment shall prohibit McCaw
from offering Cellular Digital Packet Data Services.
I. Notwithstanding the requirements of this Section IV,
AT&T may provide Interexchange Service to customers of
Unaffiliated Cellular Carriers or McCaw Minority Owned Cellular
Systems who (1) roam into McCaw Cellular Systems, and (2) have
not designated a presubscribed Interexchange Carrier or who have
designated a presubscribed Interexchange Carrier that does not
provide service to that McCaw Cellular System.
V.
MANUFACTURING
For so long as McCaw is affiliated with the AT&T Network
Wireless Infrastructure Unit; AT&T shall have the duties set
forth in Sections V.A through V.D of this Final Judgment.
A. 1. a. AT&T shall not allow Nonpublic Information of
its Unaffiliated Wireless Infrastructure Equipment
Customers to be disclosed for any reason to (i) McCaw
or any of its directors, officers, or employees; (ii)
any McCaw Minority Owned Wireless System (except in the
case in which the Nonpublic Information relates
specifically to such System); (iii) any person engaged
in marketing any McCaw service or AT&T
Telecommunications service; (iv) any person employed by
a Marketing Account Team responsible for marketing to
AT&T, McCaw or any McCaw Minority Owned Cellular
System; or (v) any person performing Proprietary
Development of Telecommunications Equipment for AT&T,
McCaw or McCaw Minority Owned Cellular Systems.
b. AT&T shall not disclose any Nonpublic
Information relating to the provision of any Wireless
Service by McCaw or AT&T, obtained by AT&T by reason of
its provision of Wireless Infrastructure Equipment to
McCaw, to any Unaffiliated Wireless Infrastructure
Equipment Customer.
c. To the extent that the President or senior
officers of AT&T Network Systems or members of AT&T's
management executive committee are persons identified
in items (ii) through (v) of Section V.A.1(a) of this
Final Judgment, they shall be permitted to receive such
Nonpublic Information in connection with their
capacities as President or senior officers of AT&T
Network Systems or members of AT&T's management
executive committee, but such persons shall not
disclose any such Nonpublic Information to other
persons identified in (i) through (v) above.
2. McCaw shall not allow Nonpublic Information of its
Unaffiliated Wireless Infrastructure Equipment suppliers to
be disclosed for any reason to any person involved in the
design, development, fabrication, or marketing of AT&T's
Telecommunications Equipment. McCaw shall not allow
Nonpublic Information of any unaffiliated Interexchange
Carrier to be disclosed for any reason to any person
involved in the design, development, fabrication, or
marketing of any AT&T Telecommunications service or product.
Access to Nonpublic Information of any unaffiliated
Interexchange Carrier shall be limited to authorized persons
within McCaw and within AT&T's Network Wireless
Infrastructure Unit having a legitimate need to know such
Nonpublic Information in order to conduct their respective
businesses.
3. AT&T shall establish, maintain, and strictly
enforce procedures designed to prevent the disclosures of
Nonpublic Information prohibited by this Final Judgment.
4. a. AT&T shall establish, maintain and strictly
enforce separate Marketing Account Teams for (i) McCaw
and other AT&T Affiliates providing Telecommunications
services and (ii) Unaffiliated Wireless Infrastructure
Equipment Customers. Members of Marketing Account
Teams for Unaffiliated Wireless Infrastructure
Equipment Customers shall not be assigned to any AT&T
or McCaw business (i) providing Telecommunications
Equipment to AT&T, McCaw or a McCaw Minority Owned
Cellular System, or (ii) providing or planning for any
AT&T or McCaw Wireless Service, except in compliance
with the procedures to be adopted pursuant to Section
V.A.4.c of this Final Judgment.
b. If AT&T performs Proprietary Development for
Unaffiliated Wireless Infrastructure Equipment
Customers, members of the Development Teams who perform
such Proprietary Development shall not perform
Proprietary Development for McCaw or for any AT&T
Telecommunications service except in compliance with
the procedures to be adopted pursuant to Section
V.A.3.c of this Final Judgment.
c. AT&T shall establish, maintain and strictly
enforce procedures designed to prevent the use or
disclosure of Nonpublic Information of Unaffiliated
Wireless Infrastructure Equipment Customers gained as a
result of an employee's (i)(A) assignment to a
Marketing Account Team responsible for Unaffiliated
Cellular Infrastructure Equipment Customers, or (B)
involvement in Proprietary Development for an
Unaffiliated Cellular Infrastructure Equipment
Customer, and (ii)(A) subsequent assignment to a
Marketing Account Team responsible for marketing
Cellular Infrastructure Equipment to AT&T, McCaw or
McCaw Minority Owned Cellular Systems, (B) subsequent
assignment to McCaw, McCaw Minority Owned Cellular
Systems, or any business providing or planning for any
AT&T or McCaw Telecommunications Service, or (C)
subsequent involvement in Proprietary Development for
McCaw or AT&T.
B. AT&T shall have the following duties to its
Unaffiliated Cellular Infrastructure Equipment Customers:
1. AT&T shall provide the Cellular Carrier and System
with
a. technical support and maintenance;
b. installation, engineering, repair, and
maintenance services;
c. additional switching and cell site equipment
to be deployed in that system;
d. upgrades and other AT&T cellular
infrastructure equipment developed for use with these
systems; and
e. spare, repair, or replacement parts, in
accordance with the same pricing and other business
practices that prevailed prior to August 1, 1993. AT&T
shall not discriminate in favor of McCaw Cellular
Systems or McCaw Minority Owned Cellular Systems in the
way in which such services or products are made
available to Cellular Carriers or Systems, and the
terms on which such services and products are provided
shall not vary depending on whether the Cellular System
that will use such service or product competes with
McCaw or a McCaw Minority Owned Cellular System; and
2. In the event AT&T has discontinued, or hereafter
discontinues, the offering of any Cellular Infrastructure
Equipment service, part, or product, AT&T shall seek to
arrange an alternative source of service or supply for the
Cellular Carrier and, if AT&T is unsuccessful, AT&T shall
provide the Cellular Carrier with licenses to use (and
rights to sublicense) whatever Technical Information is
required to provide these services, products, or parts, to
the extent AT&T is able to grant such licenses, in order to
allow the carrier to obtain the service, part, or product in
question from another source. The terms of any such
license, including reasonable charges, shall be in
accordance with reasonable and nondiscriminatory licensing
procedures.
C. 1. When AT&T engages in development of new features
and functions for use with AT&T Equipped Cellular Systems
installed or contracted for prior to the date of this Final
Judgment that, if successful, will be made available to two
or more Cellular Carriers that are not affiliated with each
other through substantial common ownership, AT&T shall
disclose the enhancements to Cellular Carriers not
affiliated with AT&T at the-same time as it discloses them
to McCaw, any McCaw Cellular Systems, or any McCaw Minority
Owned Cellular System, and shall make them available to
Unaffiliated Cellular Infrastructure Equipment Customers at
the same time as it makes them available to McCaw or any
McCaw Minority Owned Cellular System.
2. If AT&T develops for McCaw, a McCaw Cellular
System, or a McCaw Minority Owned Cellular System, features
or functions that are applicable only to McCaw or to that
System because of its adjunct hardware and software or
because of its specific operations or network, AT&T shall
afford Unaffiliated Cellular Infrastructure Equipment
Customers substantially the same opportunity to contract for
such development work on substantially the same compensatory
basis.
3. If AT&T performs for McCaw, McCaw Cellular
Systems, or McCaw Minority Owned Cellular Systems
Proprietary Development, AT&T will be required to perform
upon reasonable request Proprietary Development for
Unaffiliated Cellular Infrastructure Equipment Customers
under reasonable terms and conditions not less favorable to
the Unaffiliated Cellular Equipment Customer than those
provided to McCaw, McCaw Cellular Systems or McCaw Minority
Owned Cellular Systems.
D. If a Cellular Infrastructure Equipment Customer has
deployed or contracted to deploy an AT&T Equipped Cellular System
in whole or in substantial part prior to the date of entry of
this Final Judgment, and if that Cellular Infrastructure
Equipment Customer wishes to redeploy AT&T Cellular
Infrastructure Equipment or replace or supplement the AT&T
Equipped Cellular System with another manufacturer's switching,
cell site and other Cellular Infrastructure Equipment in whole or
in part, AT&T shall
1. provide the Cellular Infrastructure Equipment
Customer with such technical assistance and cooperation as
may be reasonably necessary in order for the Customer both
to accomplish such replacement or redeployment and to have
the new manufacturer's equipment interoperate with AT&T
products in that area or in an adjacent area, with AT&T
providing this assistance in accord with reasonable pricing
and business practices, including AT&T's right to receive
reasonable compensation for such services and its right not
to be required for these purposes to provide competing
equipment suppliers with proprietary information that is not
necessary to allow the interoperation of AT&T and non-AT&T
equipment; and
2. waive any contractual requirements that it receive
prior notice of, or must consent to, redeployment by any
customer of AT&T Cellular Infrastructure Equipment to a new
location. In the event of deployment or sale, the Cellular
Infrastructure Equipment Customer or new purchaser will
succeed to the original purchaser's warranty, license, and
other contractual rights, and AT&T's obligations under
Sections V.A, V.B, V.C, and V.D of this Final Judgment shall
apply to any new purchaser as if it had been the original
purchaser.
E. In the event that the United States, in its sole and
unreviewable discretion, determines that AT&T has violated any of
its duties under Sections V.A through V.D of this Final Judgment
to an Unaffiliated Cellular Carrier in any area where that
Unaffiliated Cellular Carrier competes with McCaw or a McCaw
Minority Owned Cellular System, and where the Unaffiliated
Cellular Carrier has deployed or contracted to deploy an AT&T
Equipped Cellular System prior to the date of entry of this Final
Judgment, AT&T shall be required to offer to buy back the AT&T
Cellular Infrastructure Equipment hardware purchased or
contracted for by that Unaffiliated Cellular Carrier for use in
that Cellular System prior to the date of the entry of this Final
Judgment, at their original purchase prices, less depredation as
calculated on a straight line basis over a period of ten years
for switches and eight years for all other hardware, to offer to
refund the proportionate share of all monies paid for unused
portions of any licenses for software to be used with such
hardware, and to offer to release the Unaffiliated Cellular
Equipment Customer from future obligations relating to Cellular
Infrastructure Equipment deployed in such Cellular System. The
United States may, in its sole discretion, appoint an independent
fact-finder to conduct the investigation or factual determination
of any issue raised in connection with any alleged violation,
reserving to the United States the right to make a final
determination. In the event of any such appointment, the losing
party (i.e., the customer or AT&T) shall pay all costs and fees
of the fact-finder. In stipulating to the entry of this Final
Judgment, AT&T has irrevocably waived any right it may have to
appeal, contest or otherwise challenge any adverse determination
of the United States pursuant to this Section V.E.
VI.
APPLICABILITY AND EFFECT
The provisions of this Final Judgment, applicable to each
defendant, shall be binding upon said defendants, their
successors and assigns, officers, agents, servants, employees,
and attorneys, and upon those persons in active concert or
participation with each defendant who receive actual notice of
this Final Judgment by personal service or otherwise. Each
defendant and each person bound by the prior sentence shall
cooperate in ensuring that the provisions of this Final Judgment
are carried out. Neither this Final Judgment nor any of its
terms or provisions shall constitute any evidence against, an
admission by, or an estoppel against any party. The effective
date of this Final Judgment shall be the date upon which it is
entered.
VII.
COMPLIANCE
A. 1. AT&T will file plans for the implementation of the
provisions of this Final Judgment with the United States
Department of Justice not later than 90 days after the Final
Judgment's entry. AT&T shall file a Structural Separation
implementation plan describing its implementation of the
provisions of Sections III and V.A.4; an Equal Access
implementation plan for each McCaw Cellular System,
describing its implementation of Section IV; and a Nonpublic
Information implementation plan, describing its
implementation of Section V.A.
2. AT&T shall supplement the plans required by
Section VII.A.1 as necessary to describe the implementation
of Equal Access in subsequently acquired Cellular Systems,
and to describe significant changes in the matters reflected
in the plans.
3. The plans shall be effective 90 days after filing
with the Department, unless disapproved by the Department by
written notice to AT&T, identifying the manner in which the
plan is insufficient. The Department may in its discretion
approve a plan in fewer than 90 days. In the absence of an
effective plan, AT&T shall be enjoined as follows:
a. In the absence of an effective Separation
plan, AT&T shall comply with Section III of this Final
Judgment without modification, and shall not perform
Proprietary Development for McCaw.
b. In the absence of an effective Equal Access
plan, AT&T may not provide Interexchange Services to
customers of McCaw Cellular Systems, except under
arrangements that prevailed prior to the merger.
c. In the absence of an effective Nonpublic
Information plan, AT&T shall not sell Cellular
Infrastructure Equipment to McCaw or McCaw Minority
Owned Cellular Systems, except that AT&T may sell
Cellular Infrastructure Equipment to such Cellular
Systems if they were AT&T Equipped Cellular Systems
prior to the commencement of this action.
B. The defendants are ordered and directed to advise their
officers and other management personnel with significant
responsibility for matters addressed in this Final Judgment of
their obligations hereunder. AT&T shall undertake the following
with respect to each such officer or management employee;
1. The distribution to them, within 30 days of entry
of this Final Judgment, or within 30 days of a person's
becoming an officer or other management personnel with
significant responsibility for matters addressed in this
Final Judgment of a written directive setting forth AT&T's
policy regarding compliance with this Final Judgment, with
such directive to include: (a) an admonition that
noncompliance with such policy and this Final Judgment will
result in appropriate disciplinary action, which may include
dismissal; and (b) advice that AT&T's legal advisors are
available at all reasonable times to confer with such
persons regarding any compliance questions or problems;
2. The imposition of a requirement that each of them
sign and submit to AT&T a certificate in substantially the
following form:
The undersigned hereby (1) acknowledges receipt of a
copy of the 1994 United States v. AT&T Corp. Final
Judgment and a written directive setting forth AT&T's
policy regarding compliance with such Final Judgment,
(2) represents that the undersigned has read such Final
Judgment and directive and understands those provisions
for which the undersigned has responsibility, (3)
acknowledges that the undersigned has been advised and
understands that noncompliance with such policy and
Final Judgment will result in appropriate disciplinary
measures determined by AT&T, which may include
dismissal, and (4) acknowledges that the undersigned
has been advised and understands that non-compliance
with the Final Judgment may also result in conviction
for contempt of court and imprisonment and/or fine.
VIII.
VISITATION
A. For the purpose of determining or securing compliance
with this Final Judgment, and subject to any legally recognized
privilege, from time to time:
1. Upon written request of the Attorney General or of
the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to a defendant, made to
its principal office, duly authorized representatives of the
Department of Justice shall be permitted access during
office hours of such defendant to depose or interview
officers, employees, or agents, and inspect and copy all
books, ledgers, accounts, correspondence, memoranda and
other records and documents in the possession or under the
control of such defendant, who may have counsel present,
relating to any matters contained in this Final Judgment;
and
2. Upon the written request of the Attorney General
or of the Assistant Attorney General in charge of the
Antitrust Division made to a defendant's principal office,
such defendant shall submit such written reports, under oath
if requested, with respect to any of the matters contained
if this Final Judgment as may be requested.
B. No information or documents obtained by the means
provided in this section 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 or the Commission, 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.
C. If at the time information or documents are furnished
by a defendant to plaintiff, such defendant represents and
identifies in writing the material in any such information or
documents to which a claim of protection may he asserted under
Rule 26(c)(7) of the Federal Rules of Civil Procedure, and said
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 10 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 that defendant is not a party.
IX.
RETENTION OF JURISDICTION
Jurisdiction is retained by this 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 the
provisions hereof for the enforcement of compliance herewith, and
for the punishment of any violation hereof.
X.
MODIFICATION
A. If BOC Wireless Systems are relieved in whole or in
part of any or all of the comparable equal access or
nondiscrimination obligations of the MFJ as a result of
legislation, judicial orders, or agency orders that vacate,
modify, supersede, or interpret the provisions of the MFJ, the
provisions of Article IV of this Final Judgment shall be modified
or vacated to provide the same relief to AT&T or McCaw upon their
showing that competitive conditions do not require a different
obligation for AT&T and McCaw and that this modification is
equitable and in the public interest.
B. If AT&T or McCaw seeks modification or removal of the
provisions of this Final Judgment upon grounds that include a
showing either (1) that enhanced specialized mobile radio
services, personal communications services licensed in the 1.8 to
2.1 GHz band, or other services have developed as effective
competitive alternatives to the cellular services in existence at
the time of entry of the Final Judgment, or (2) that there have
been other changes or developments affecting a relevant market,
AT&T and McCaw will be entitled to modification of the provisions
of Article IV or Article V of this Final Judgment if it shows
that intervening changes have made the retention of the provision
inequitable, irrespective of whether the intervening changes or
developments had been foreseen or were foreseeable when the Final
Judgment was entered. AT&T and McCaw have stipulated that they
will not move for any modification of this Final Judgment, except
with the consent of the United States, for eighteen months
following the date of the commencement of this action.
XI.
EXPIRATION
The provisions of this Final Judgment, to the extent they
remain in effect, shall expire on the date ten years after its
entry.
XII.
PUBLIC INTEREST
Entry of this Final Judgment is in the public interest.
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U.S.D.J.
