S 467 IS, the Antitrust Merger Review Act.
Re: amendment to Section 7A of the Clayton Act.
Date introduced: February 25, 1999.
Sponsors: Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI).
Source: Library of Congress.

See also, Tech Law Journal Summary of Bills Pertaining to Telecom Antitrust Merger Reviews in the 106th Congress.

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

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,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Antitrust Merger Review Act'.

SEC. 2. RESTATEMENT AND IMPROVEMENT OF SECTION 7A OF THE CLAYTON ACT.

(a) IN GENERAL- Section 7A of the Clayton Act (15 U.S.C. 18a) is amended to read as follows:

`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--

`(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;

`(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;

`(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

`(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

`(3) as a result of such acquisition, the acquiring person would hold--

`(A) 15 per centum or more of the voting securities or assets of the acquired person, or

`(B) an aggregate total amount of the voting securities and assets of the acquired person in excess of $15,000,000.

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).

`(b)(1) The waiting period required under subsection (a) shall--

`(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--

`(i) the completed notification required under subsection (a), or

`(ii) if such notification is not completed, the notification to the extent completed and a statement of the reasons for such noncompliance,

from both persons, or, in the case of a tender offer, the acquiring person; and

`(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).

`(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.

`(3) As used in this section--

`(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.

`(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.

`(c) The following classes of transactions are exempt from the requirements of this section--

`(1) acquisitions of goods or realty transferred in the ordinary course of business;

`(2) acquisitions of bonds, mortgages, deeds of trust, or other obligations which are not voting securities;

`(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;

`(4) transfers to or from a Federal agency or a State or political subdivision thereof;

`(5) transactions specifically exempted from the antitrust laws by Federal statute;

`(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;

`(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);

`(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;

`(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;

`(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;

`(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

`(12) such other acquisitions, transfers, or transactions, as may be exempted under subsection (d)(2)(B).

`(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--

`(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

`(2) may--

`(A) define the terms used in this section;

`(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

`(C) prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.

`(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.

`(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).

`(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.

`(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.

`(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--

`(A) may order compliance;

`(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

`(C) may grant such other equitable relief as the court in its discretion determines necessary or appropriate, upon application of the Federal Trade Commission or the Assistant Attorney General.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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.

`(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).

`(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.

`(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.

`(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.

`(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.

`(7) No provision of this subsection may be construed to limit or modify--

`(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

`(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.

`(8) Subsection (g)(1) shall not apply with respect to the activities of a party under this subsection.'.

(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.

(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.