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Refusals To Deal : Steven C. Salop Statement


Slide 1

Refusals to Deal

Steven C. Salop
Georgetown University Law Center
CRA International

FTC/DO J Hearings on Exclusionary Conduct
July 18, 2006

Slide 2

General Exclusion Standards

  • Alternative Standards
    • Consumer Welfare Effect
    • Profit Sacrifice/No Economic Sense
  • Benefits of CWE
    • Focused on goal of antitrust
    • Flexible - "an enquiry meet for the case"
    • Implies tailored structured inquiry for each type of exclusionary conduct
    • Unifies Section 1 and Section 2 analysis under the rule of reason
  • Misperceptions about CWE standard
    • Does not require open-ended balancing - permits different specific legal tests in different exclusion settings
    • Does not lead to false positives
  • Sacrifice/NES standard causes false negatives and false positives

Slide 3

Innovation Incentives

  • Innovation incentives are a claimed rationale for restricting Section 2
  • But, basis and significance of concern are unclear
    • Firms have strong incentives to innovate in competitive markets
    • Market innovation incentives improved by competition
    • Monopolists have weaker incentives than competitors
    • Exclusionary conduct reduces innovation incentives of entrants and rivals, by reducing or eliminating their market prospects
    • No evidence of weakened innovation from fear of antitrust
  • Thus, justification for restricting Section 2 is weak

Slide 4

Comparing Standards for Refusals to Deal: Summary

  • Alternative Standards
    • Consumer Welfare Effect
    • Profit-Sacrifice/No Economic Sense
    • Per Se Legality
  • CWE and Sacrifice/NES have similarities
    • Both require a price benchmark
    • But, Sacrifice/NES standard may not require proof
    • of anticompetitive effects (causes false positives)
  • Per se legality leads to reduced competition and significant false negatives
    • Limits of per se rule also are unclear

Slide 5

Proposed Rule under CWE Standard: What Plaintiff Must Prove

  • Monopoly power
    • Monopoly power in input market
    • Actual or likely monopoly power in output market
  • Plaintiff has made a genuine offer to buy at or above the appropriate "non-exclusion benchmark" price, as defined below; whereas defendant has failed to accept such an offer or made a genuine offer to sell at or below that benchmark price, ("compensation" test)
  • Refusal to deal would cause prices to be raised or maintained at supra-competitive level. ("effects test")
    • Output market
    • Input market
    • Another market where the entrant is an actual or potential competitor of defendant

Slide 6

Non-Exclusion Benchmark Price

  • Non-exclusion benchmark price: potential alternatives
    • Prior price charged to plaintiff
    • Price charged to other buyers
    • Price that compensates defendant for monopoly profits on output sales lost to plaintiff ("protected-profits" benchmark)
  • Potential adjustments to benchmark
    • If dealing raises defendant's production costs
    • If plaintiff creates reputational free riding
    • If monopoly power attained or maintained illegitimately
  • Burden may shift to defendant to show plaintiff's price offer is below benchmark
    • If non-negotiable ("flat") refusal to deal

Slide 7

"Protected-Profits" Benchmark

  • Properties of benchmark
    • Compensates for lost output market monopoly profits from defendant's customers who switch to entrant
    • But, no compensation for price competition caused by entry by firm with lower costs or superior product for some consumers
  • Derived from ECPR literature
    • Baumol/Ordover/Willig
    • Commentators (e.g., Armstrong/Doyle/Vickers/White)
  • Benchmark input price: W = Cu + D x Md
    • Cu= monopolist's marginal cost of input (in dollars)
    • Md= monopolist's output "gross margin" over costs (in dollars)
    • D = fraction of entrant's output sales diverted from monopolist

Slide 8

Example: Verizon and AT&T

  • Protected-profits benchmark is practical for courts and firms to calculate
  • Assumptions: relevant data
    • Verizon's incremental cost of DSL inputs is $10
    • Verizon earns monopoly margin over costs of $50on retail DSL
    • If Verizon deals with AT&T, 50% of AT&T DSL customers would come from Verizon retail DSL, with rest from cable and dial-up.
      • D = 50%
  • Benchmark input price: W = $35 .
    • If D=1 (100% diversion), then W=$60

Slide 9

Trinko's Cautions

  • No general Sherman Act duty to deal
    • Cf Colgate (no duty "in the absence of any purpose to create or maintain a monopoly")
  • Forced dealing raises red flags
    • Compelling firms to share may lessen
    • investment incentives.
    • Enforced sharing requires courts to act as
    • central planners
    • Compelling negotiation can facilitate collusion.

Slide 10

Investment Incentives Concern: Some Answers

  • Benchmark price compensates defendant for monopoly profits on lost customers.
  • Entrant unlikely to enter input market
    • Defendant's input market monopoly power implies durable entry barriers
    • This also makes leapfrog competition by entrant less likely
  • Competitive market will increase defendant's innovation incentives
    • Monopolists have weaker innovation incentives
  • Ability to enter output market will increase entrant's innovation incentives
  • Entrant cannot be called a free-rider on the grounds that it competes with defendant in only one market, rather than entering both markets
    • Kodak ("this understanding of free-riding has no support in our case law")

Slide 11

Courts as Central Planners Concern: Some Answers

  • Courts and agencies routinely compare prices and costs, and use other quantitative economic evidence
    • Eg, Brooke Group, Ortho, Kraft, agency merger analysis
  • Task is not beyond the capabilities of District Court judges
    • Market prices often provide a good benchmark
    • Protected-profits benchmark is not too difficult to evaluate
  • If antitrust withdraws, then alternative may be new public utility regulation
    • Is FOSC the next step?
      • Federal Operating System Commission
    • Rare use of essential facilities doctrine could serves as an intermediate stopping point

Slide 12

Facilitating Collusion Concern: Some Answers

  • Court's caution is very broad. Firms have independent incentives to negotiate, and independent incentives to collude.
    • Would Court's reasoning lead it to prohibit voluntary dealing between competitors because it can lead to collusion?
    • Or, prohibit joint ventures, which can (and sometimes do) serve as forums for collusion?
    • Or prohibit patent settlements, which can (and sometime are) used to strike non-compete agreements or collude on price?
  • Refusals to deal against competitors may hide (or amount to) non-compete agreements:
    • "I will sell to you if you promise not to compete with me."
  • Collusion is less likely when negotiation is forced (and potentially monitored) by a court
  • Incremental effect of forced negotiation on collusion likely insignificant or negative

Slide 13

How Would a Rule of Per Se Legality be Limited?

  • If it is per se legal to refuse to deal with firms that compete with you ...
  • Then why not also per se legal to refuse to deal with firms that...
    • Sell output to your competitors? ("exclusive dealing")
    • Purchase inputs from your competitors? ("exclusive dealing")
    • Buy other products from your competitors? ("tying")
    • Announce their intention to compete with you in some
    • product market? ("non-competition agreement")
    • Charge low prices for their competing products?
    • ("price fixing")

Slide 14

Appendix

The Overarching Antitrust Standard: "Consumer Welfare" vs "Total Welfare"

Slide 15

Economic Welfare Standards

  • True consumer welfare standard
    • Consumer surplus
  • Total welfare standard
    • Total surplus
    • Bork named this "consumer welfare" -- deception or just confusion?
  • Why use the true consumer welfare standard?
    • Does not permit competitor injury to trump consumer benefits
      • But, total welfare standard does allow this trump -- Did Bork know?
    • Consistent with precedent
    • Simpler to evaluate (price and output)
    • Induces efficient conduct
      • Firm can marginally restructure transactions in efficient ways to eliminate consumer harm and raises
      • total welfare in the process
      • Offsets unwillingness of courts/agencies to rigorously apply less restrictive alternative standard or gain
      • full information about potential alternatives, thereby preventing inefficiencies
    • Better supports innovation incentives

Slide 16

Innovation Incentives and Welfare Standards

  • Consumer welfare standard supports greater overall innovation incentives
    • Total welfare standard allows the dominant firm to destroy higher cost rivals that otherwise would innovate, thereby reducing innovation
    • Total welfare standard allows mergers and exclusion that eliminate competition, leading to a dominant firm with less incentive to innovate
    • These harms likely are larger than any marginal efficiency benefits from allowing mergers or exclusionary conduct that modestly reduce costs, while leading to higher prices to consumers
  • Thus, adopting the true consumer welfare standard leads to higher long-run total welfare, as well as higher long-run consumer welfare.
Updated December 29, 2023