[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 467 Reported in Senate (RS)]
Calendar No. 192
106th CONGRESS
1st Session
S. 467
To restate and improve section 7A of the Clayton Act, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 25, 1999
Mr. DeWine (for himself and Mr. Kohl) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
July 1, 1999
Reported by Mr. Hatch, with an amendment and an amendment to the title
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To restate and improve section 7A of the Clayton Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Antitrust Merger Review
Act''.</DELETED>
<DELETED>SEC. 2. RESTATEMENT AND IMPROVEMENT OF SECTION 7A OF THE
CLAYTON ACT.</DELETED>
<DELETED> (a) In General.--Section 7A of the Clayton Act (15 U.S.C.
18a) is amended to read as follows:</DELETED>
<DELETED> ``Sec. 7A. (a) Except as exempted pursuant to subsection
(c), no person shall acquire, directly or indirectly, any voting
securities or assets of any other person, unless both persons (or in
the case of a tender offer, the acquiring person) file notification
pursuant to rules under subsection (d)(1) and the waiting period
described in subsection (b)(1) has expired, if--</DELETED>
<DELETED> ``(1) the acquiring person, or the person whose
voting securities or assets are being acquired, is engaged in
commerce or in any activity affecting commerce;</DELETED>
<DELETED> ``(2)(A) any voting securities or assets of a
person engaged in manufacturing which has annual net sales or
total assets of $10,000,000 or more are being acquired by any
person which has total assets or annual net sales of
$100,000,000 or more;</DELETED>
<DELETED> ``(B) any voting securities or assets of a person
not engaged in manufacturing which has total assets of
$10,000,000 or more are being acquired by any person which has
total assets or annual net sales of $100,000,000 or more;
or</DELETED>
<DELETED> ``(C) any voting securities or assets of a person
with annual net sales or total assets of $100,000,000 or more
are being acquired by any person with total assets or annual
net sales of $10,000,000 or more; and</DELETED>
<DELETED> ``(3) as a result of such acquisition, the
acquiring person would hold--</DELETED>
<DELETED> ``(A) 15 per centum or more of the voting
securities or assets of the acquired person,
or</DELETED>
<DELETED> ``(B) an aggregate total amount of the
voting securities and assets of the acquired person in
excess of $15,000,000.</DELETED>
<DELETED>In the case of a tender offer, the person whose voting
securities are sought to be acquired by a person required to file
notification under this subsection shall file notification pursuant to
rules under subsection (d).</DELETED>
<DELETED> ``(b)(1) The waiting period required under subsection (a)
shall--</DELETED>
<DELETED> ``(A) begin on the date of the receipt by the
Federal Trade Commission and the Assistant Attorney General in
charge of the Antitrust Division of the Department of Justice
(hereinafter referred to in this section as the `Assistant
Attorney General') of--</DELETED>
<DELETED> ``(i) the completed notification required
under subsection (a), or</DELETED>
<DELETED> ``(ii) if such notification is not
completed, the notification to the extent completed and
a statement of the reasons for such
noncompliance,</DELETED>
<DELETED>from both persons, or, in the case of a tender offer,
the acquiring person; and</DELETED>
<DELETED> ``(B) end on the thirtieth day after the date of
such receipt (or in the case of a cash tender offer, the
fifteenth day), or on such later date as may be set under
subsection (e)(2) or (g)(2).</DELETED>
<DELETED> ``(2) The Federal Trade Commission and the Assistant
Attorney General may, in individual cases, terminate the waiting period
specified in paragraph (1) and allow any person to proceed with any
acquisition subject to this section, and promptly shall cause to be
published in the Federal Register a notice that neither intends to take
any action within such period with respect to such
acquisition.</DELETED>
<DELETED> ``(3) As used in this section--</DELETED>
<DELETED> ``(A) The term `voting securities' means any
securities which at present or upon conversion entitle the
owner or holder thereof to vote for the election of directors
of the issuer or, with respect to unincorporated issuers,
persons exercising similar functions.</DELETED>
<DELETED> ``(B) The amount or percentage of voting
securities or assets of a person which are acquired or held by
another person shall be determined by aggregating the amount or
percentage of such voting securities or assets held or acquired
by such other person and each affiliate thereof.</DELETED>
<DELETED> ``(c) The following classes of transactions are exempt
from the requirements of this section--</DELETED>
<DELETED> ``(1) acquisitions of goods or realty transferred
in the ordinary course of business;</DELETED>
<DELETED> ``(2) acquisitions of bonds, mortgages, deeds of
trust, or other obligations which are not voting
securities;</DELETED>
<DELETED> ``(3) acquisitions of voting securities of an
issuer at least 50 per centum of the voting securities of which
are owned by the acquiring person prior to such
acquisition;</DELETED>
<DELETED> ``(4) transfers to or from a Federal agency or a
State or political subdivision thereof;</DELETED>
<DELETED> ``(5) transactions specifically exempted from the
antitrust laws by Federal statute;</DELETED>
<DELETED> ``(6) transactions specifically exempted from the
antitrust laws by Federal statute if approved by a Federal
agency, if copies of all information and documentary material
filed with such agency are contemporaneously filed with the
Federal Trade Commission and the Assistant Attorney
General;</DELETED>
<DELETED> ``(7) transactions which require agency approval
under section 10(e) of the Home Owners' Loan Act (12 U.S.C.
1467a), section 18(c) of the Federal Deposit Insurance Act (12
U.S.C. 1828(c)), or section 3 of the Bank Holding Company Act
of 1956 (12 U.S.C. 1842);</DELETED>
<DELETED> ``(8) transactions which require agency approval
under section 4 of the Bank Holding Company Act of 1956 (12
U.S.C. 1843) or section 5 of the Home Owners' Loan Act (12
U.S.C. 1464), if copies of all information and documentary
material filed with any such agency are contemporaneously filed
with the Federal Trade Commission and the Assistant Attorney
General at least 30 days prior to consummation of the proposed
transaction;</DELETED>
<DELETED> ``(9) acquisitions, solely for the purpose of
investment, of voting securities, if, as a result of such
acquisition, the securities acquired or held do not exceed 10
per centum of the outstanding voting securities of the
issuer;</DELETED>
<DELETED> ``(10) acquisitions of voting securities, if, as a
result of such acquisition, the voting securities acquired do
not increase, directly or indirectly, the acquiring person's
per centum share of outstanding voting securities of the
issuer;</DELETED>
<DELETED> ``(11) acquisitions, solely for the purpose of
investment, by any bank, banking association, trust company,
investment company, or insurance company, of (A) voting
securities pursuant to a plan of reorganization or dissolution;
or (B) assets in the ordinary course of its business;
and</DELETED>
<DELETED> ``(12) such other acquisitions, transfers, or
transactions, as may be exempted under subsection
(d)(2)(B).</DELETED>
<DELETED> ``(d) The Federal Trade Commission, with the concurrence
of the Assistant Attorney General and by rule in accordance with
section 553 of title 5, United States Code, consistent with the
purposes of this section--</DELETED>
<DELETED> ``(1) shall require that the notification required
under subsection (a) be in such form and contain such
documentary material and information relevant to a proposed
acquisition as is necessary and appropriate to enable the
Federal Trade Commission and the Assistant Attorney General to
determine whether such acquisition may, if consummated, violate
the antitrust laws; and</DELETED>
<DELETED> ``(2) may--</DELETED>
<DELETED> ``(A) define the terms used in this
section;</DELETED>
<DELETED> ``(B) exempt, from the requirements of
this section, classes of persons, acquisitions,
transfers, or transactions which are not likely to
violate the antitrust laws; and</DELETED>
<DELETED> ``(C) prescribe such other rules as may be
necessary and appropriate to carry out the purposes of
this section.</DELETED>
<DELETED> ``(e)(1) The Federal Trade Commission or the Assistant
Attorney General may, prior to the expiration of the 30-day waiting
period (or in the case of a cash tender offer, the 15-day waiting
period) specified in subsection (b)(1), require the submission of
additional information or documentary material relevant to the proposed
acquisition, from a person required to file notification with respect
to such acquisition under subsection (a) prior to the expiration of the
waiting period specified in subsection (b)(1), or from any officer,
director, partner, agent, or employee of such person.</DELETED>
<DELETED> ``(2) The Federal Trade Commission or the Assistant
Attorney General, in its or his discretion, may extend the 30-day
waiting period (or in the case of a cash tender offer, the 15-day
waiting period) specified in subsection (b)(1) for an additional period
of not more than 20 days (or in the case of a cash tender offer, 10
days) after the date on which the Federal Trade Commission or the
Assistant Attorney General, as the case may be, receives from any
person to whom a request is made under paragraph (1), or in the case of
tender offers, the acquiring person, (A) all the information and
documentary material required to be submitted pursuant to such a
request, or (B) if such request is not fully complied with, the
information and documentary material submitted and a statement of the
reasons for such noncompliance. Such additional period may be further
extended only by the United States district court, upon an application
by the Federal Trade Commission or the Assistant Attorney General
pursuant to subsection (g)(2).</DELETED>
<DELETED> ``(f) If a proceeding is instituted or an action is filed
by the Federal Trade Commission, alleging that a proposed acquisition
violates section 7 of this Act or section 5 of the Federal Trade
Commission Act, or an action is filed by the United States, alleging
that a proposed acquisition violates such section 7 or section 1 or 2
of the Sherman Act, and the Federal Trade Commission or the Assistant
Attorney General (1) files a motion for a preliminary injunction
against consummation of such acquisition pendente lite, and (2)
certifies the United States district court for the judicial district
within which the respondent resides or carries on business, or in which
the action is brought, that it or he believes that the public interest
requires relief pendente lite pursuant to this subsection, then upon
the filing of such motion and certification, the chief judge of such
district court shall immediately notify the chief judge of the United
States court of appeals for the circuit in which such district court is
located, who shall designate a United States district judge to whom
such action shall be assigned for all purposes.</DELETED>
<DELETED> ``(g)(1) Any person, or any officer, director, or partner
thereof, who fails to comply with any provision of this section shall
be liable to the United States for a civil penalty of not more than
$10,000 for each day during which such person is in violation of this
section. Such penalty may be recovered in a civil action brought by the
United States.</DELETED>
<DELETED> ``(2) If any person, or any officer, director, partner,
agent, or employee thereof, fails substantially to comply with the
notification requirement under subsection (a) or any request for the
submission of additional information or documentary material under
subsection (e)(1) within the waiting period specified in subsection
(b)(1) and as may be extended under subsection (e)(2), the United
States district court--</DELETED>
<DELETED> ``(A) may order compliance;</DELETED>
<DELETED> ``(B) shall extend the waiting period specified in
subsection (b)(1) and as may have been extended under
subsection (e)(2) until there has been substantial compliance,
except that, in the case of a tender offer, the court may not
extend such waiting period on the basis of a failure, by the
person whose stock is sought to be acquired, to comply
substantially with such notification requirement or any such
request; and</DELETED>
<DELETED> ``(C) may grant such other equitable relief as the
court in its discretion determines necessary or
appropriate,</DELETED>
<DELETED>upon application of the Federal Trade Commission or the
Assistant Attorney General.</DELETED>
<DELETED> ``(h) Any information or documentary material filed with
the Assistant Attorney General or the Federal Trade Commission pursuant
to this section shall be exempt from disclosure under section 552 of
title 5, United States Code, and no such information or documentary
material may be made public, except as may be relevant to any
administrative or judicial action or proceeding. Nothing in this
section is intended to prevent disclosure to either body of Congress or
to any duly authorized committee or subcommittee of Congress.</DELETED>
<DELETED> ``(i)(1) Any action taken by the Federal Trade Commission
or the Assistant Attorney General or any failure of the Federal Trade
Commission or the Assistant Attorney General to take any action under
this section shall not bar any proceeding or any action with respect to
such acquisition at any time under any other section of this Act or any
other provision of law.</DELETED>
<DELETED> ``(2) Nothing contained in this section shall limit the
authority of the Assistant Attorney General or the Federal Trade
Commission to secure at any time from any person documentary material,
oral testimony, or other information under the Antitrust Civil Process
Act, the Federal Trade Commission Act, or any other provision of
law.</DELETED>
<DELETED> ``(j) Beginning not later than January 1, 1978, the
Federal Trade Commission, with the concurrence of the Assistant
Attorney General, shall annually report to Congress on the operation of
this section. Such report shall include an assessment of the effects of
this section, of the effects, purpose, and need for any rules
promulgated pursuant thereto, and any recommendations for revisions of
this section.</DELETED>
<DELETED> ``(k)(1) The consideration by the Federal Communications
Commission of any application for a transfer of license, or the
acquisition and operation of lines, that is associated with an
acquisition subject to this section shall be governed by the procedures
set forth in this subsection.</DELETED>
<DELETED> ``(2)(A) Upon receipt of an application referred to in
paragraph (1), the Federal Communications Commission may submit to the
party or parties covered by the application a request for any documents
and information necessary for consideration of the transfer of license,
or acquisition and operation of lines, addressed in the
application.</DELETED>
<DELETED> ``(B) The Federal Communications Commission shall submit a
request under subparagraph (A), if at all, not later than 30 days after
receipt of the application in question.</DELETED>
<DELETED> ``(3)(A) A party subject to a request from the Federal
Communications Commission under paragraph (2) shall submit to the
Federal Communications Commission the documents and information
identified in the request.</DELETED>
<DELETED> ``(B) At the completion of the submission to the Federal
Communications Commission of documents and information pursuant to a
request under subparagraph (A), the party submitting such documents and
information shall certify to the Federal Communications Commission
whether or not such party has complied substantially with the
request.</DELETED>
<DELETED> ``(4) Whenever consideration of an application referred to
in paragraph (1) includes one or more requests for documents and
information under paragraph (2), the Federal Communications Commission
shall complete the consideration of the application not later than 180
days after the date on which all parties covered by such requests have
certified to the Federal Communications Commission under paragraph
(3)(B) that such parties have complied substantially with such
requests.</DELETED>
<DELETED> ``(5)(A) In any case in which the Federal Communications
Commission does not request under paragraph (2) any documents and
information for the consideration of an application referred to in
paragraph (1), the Federal Communications Commission shall approve or
deny the transfer of license, or the acquisition and operation of
lines, covered by the application not later than 30 days after the date
of the submittal of the application to the Federal Communications
Commission.</DELETED>
<DELETED> ``(B) In any case in which the Federal Communications
Commission requests under paragraph (2) documents and information for
the consideration of an application referred to in paragraph (1), the
Federal Communications Commission shall approve or deny the transfer of
license, or the acquisition and operation of lines, covered by the
application on the date of the completion of consideration of the
application under paragraph (4).</DELETED>
<DELETED> ``(C) If the Federal Communications Commission does not
approve or deny an application for a transfer of license, or for the
acquisition and operation of lines, by the date set forth in
subparagraph (A) or (B), whichever applies, the application shall be
deemed approved by the Federal Communications Commission as of such
date. Approval under this subparagraph shall be without
conditions.</DELETED>
<DELETED> ``(6)(A) Any party seeking to challenge the reasonableness
of a request of the Federal Communications Commission under paragraph
(2) shall bring an action in the United States District Court of the
District of Columbia seeking a declaratory judgment or injunctive
relief with respect to that challenge.</DELETED>
<DELETED> ``(B) In seeking to challenge the compliance under
paragraph (3) of a party with a request under paragraph (2), the
Federal Communications Commission shall bring an action in the United
States District Court of the District of Columbia seeking a declaratory
judgment or injunctive relief with respect to that challenge.</DELETED>
<DELETED> ``(C) The period of an action under this paragraph may not
be taken into account in determining the passage of time under a
deadline under this subsection.</DELETED>
<DELETED> ``(7) No provision of this subsection may be construed to
limit or modify--</DELETED>
<DELETED> ``(A) the standards utilized by the Federal
Communications Commission under the Communications Act of 1934
(47 U.S.C. 151 et seq.) in considering or approving transfers
of licenses, or the acquisition and operation of lines, covered
by an application referred to in paragraph (1); or</DELETED>
<DELETED> ``(2) the authority of the Federal Communications
Commission under that Act to impose conditions upon the
transfer of licenses, or the acquisition and operation of
lines, pursuant to such consideration or approval.</DELETED>
<DELETED> ``(8) Subsection (g)(1) shall not apply with respect to
the activities of a party under this subsection.''.</DELETED>
<DELETED> (b) Effective Date.--(1) Except as provided in paragraph
(2), the amendment made by subsection (a) shall take effect on the date
of the enactment of this Act.</DELETED>
<DELETED> (2) Subsection (k) of section 7A of the Clayton Act, as
amended by subsection (a) of this section, shall take effect 30 days
after the date of the enactment of this Act, and shall apply with
respect to applications referred to in such subsection (k) that are
submitted to the Federal Communications Commission on or after that
date.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Expeditious Action on
Telecommunications Merger Act''.
SEC. 2. SCHEDULE FOR CONSIDERATION BY FEDERAL COMMUNICATIONS COMMISSION
OF CERTAIN APPLICATIONS FOR TRANSFERS OF LICENSES OR
LINES.
(a) In General.--The consideration by the Federal Communications
Commission of any application for a transfer of license, or for the
acquisition and operation of lines, that is associated with an
acquisition, whether direct or indirect, of voting securities or assets
shall be governed by the schedule set forth in this section.
(b) Deadline for Consideration.--
(1) Certain applications.--
(A) In general.--In the case of an application
described in subparagraph (B), the Commission shall
complete the consideration of the application not later
than 180 days after the date of the receipt of the
application by the Commission unless the Commission, by
majority vote of the members of the Commission, extends
the period of consideration of the application by not
more than 60 additional days.
(B) Covered applications.--An application described
in this subparagraph is an application referred to in
subsection (a) as a result of which the acquiring
person would hold--
(i) 15 percent or more of the voting
securities or assets of the acquired person; or
(ii) an aggregate total amount of the
voting securities and assets of the acquired
person in excess of $15,000,000.
(2) Other applications.--In the case of any application
referred to in subsection (a) other than an application covered
by paragraph (1), the Commission shall complete the
consideration of the application not later than 90 days after
the date of the receipt of the application by the Commission
unless the Commission, by majority vote of the members of the
Commission, extends the period of consideration of the
application by not more than 30 additional days.
(c) Failure To Act.--If the Commission does not approve, approve
with modifications, or deny an application for a transfer of license,
or for the acquisition and operation of lines, by the date provided for
the consideration of the application under paragraph (1) or (2) of
subsection (b), whichever applies, the application shall be deemed
approved by the Commission as of such date. Approval under this
subsection shall be without modifications.
(d) Construction.--No provision of this section may be construed to
enhance, limit, or modify in any way--
(1) the standards utilized by the Commission under the
Communications Act of 1934 (47 U.S.C. 151 et seq.) in
considering or approving transfers of licenses, or the
acquisition and operation of lines, covered by an application
referred to in subsection (a); or
(2) the authority of the Commission under that Act to
impose conditions upon the transfer of licenses, or the
acquisition and operation of lines, pursuant to such
consideration or approval.
(e) Applicability.--
(1) In general.--Except as provided in paragraph (2), this
section shall take effect 30 days after the date of the
enactment of this Act, and shall apply with respect to
applications referred to in such subsection (a) that are
submitted to the Commission on or after that date.
(2) Pending applications.--If an application described by
subsection (a) is pending before the Commission as of the date
of the enactment of this Act, subsections (c) and (d) shall
apply with respect to the application as if the application had
been submitted to the Commission on the date of the enactment
of this Act.
Amend the title so as to read: ``A bill to establish a
schedule for the review by the Federal Communications
Commission of certain applications for transfers of licenses,
or for the acquisition and operation of lines, and for other
purposes.''.
Calendar No. 192
106th CONGRESS
1st Session
S. 467
_______________________________________________________________________
A BILL
To restate and improve section 7A of the Clayton Act, and for other
purposes.
_______________________________________________________________________
July 1, 1999
Reported with an amendment and an amendment to the title