Publications and Speeches 2014
Publications and Speeches 2014
Transparency, clarity, and policy leadership are key elements of effective and efficient antitrust enforcement. Accordingly, the Division periodically publishes speeches, guidelines and policy statements, and closing statements that provide guidance on the legal and economic analytical frameworks the Division employs when reviewing proposed transactions and conducting investigations.
In addition, the Division’s Economic Analysis Group (EAG) disseminates research to inform interested individuals and institutions of EAG’s research program and to stimulate comment on economic issues related to antitrust policy and regulation. A full listing of those documents is available at the Economic Analysis Group Papers page.
Recent speeches by Division officials include:
- Assistant Attorney General (AAG) Bill Baer’s February 11, 2014 speech entitled “Public and Private Antitrust Enforcement in the United States,” which discussed how the United States historically has “relied on a combination of federal, state, and private enforcers to combat anticompetitive conduct” and detailed how their roles have evolved over the decades.
- AAG Baer’s January 30, 2014 speech entitled “Reflections on Antitrust Enforcement in the Obama Administration,” which reviewed “the progress antitrust enforcement has made these past five years” and emphasized, among other things, that the Division “continue[s] to vigorously pursue and prosecute international and domestic cartels” and “that it will take all steps necessary to challenge anticompetitive transactions.”
- Deputy Assistant Attorney General (DAAG) Renata B. Hesse’s January 22, 2014 speech entitled “At the Intersection of Antitrust & High-Tech: Opportunities for Constructive Engagement,” which stated that “[a]ntitrust law has an important role to play in high-tech markets” and explained why “the interests of truly innovative technology companies are closely aligned with the Antitrust Division, which seeks to ensure that commercial outcomes are decided in free and open markets, on the basis of superior innovation, quality, and price.”
- DAAG Aviv Nevo’s January 22, 2014 speech entitled “Mergers That Increase Bargaining Leverage,” which focused on “industries characterized by bargaining between providers, who produce content or provide services, and distributors, who sell the products or services to final customers as part of a bundle” and explored “why the interplay between different providers as they separately bargain with distributors is a form of competition (and therefore why a merger between providers is a loss of competition),” explaining that “bargaining leverage is a source of economic power and a merger that involves an increase in bargaining leverage is a form of lessening of competition.”
- DAAG Hesse’s November 8, 2013 speech entitled “The Art of Persuasion: Competition Advocacy at the Intersection of Antitrust and Intellectual Property,” which detailed how the Division’s “competition advocacy on IP issues has resulted in vigorous dialogue, improved rules and regulations, and more competitive outcomes in key IP-driven industries.”
- AAG Baer’s September 25, 2013 speech entitled “Remedies Matter: The Importance of Achieving Effective Antitrust Outcomes,” which stated that the Division is “open to new ideas that remedy anticompetitive conduct and guard against any recurrence” provided that these new ideas promote the Division’s “fundamental purpose” of ensuring “the effective protection of competition and American consumers.”
Congressional Testimony and Public Comments
On December 17, 2013, DAAG Leslie C. Overton testified during a hearing on “Mandatory Arbitration Requirements” conducted by the Committee on the Judiciary of the U.S. Senate. In her prepared remarks, DAAG Overton explained that the Division filed an amicus curiae brief before the U.S. Supreme Court in American Express Co. v. Italian Colors Restaurant (Case No. 12-133) “because of its concern that the effect of the mandatory arbitration agreement in the facts of that case would prevent respondents from being able to effectively vindicate their rights under the antitrust laws.”
On November 15, 2013, AAG Baer testified during a hearing on “Oversight of the Antitrust Enforcement Agencies” conducted by the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the Committee on the Judiciary of the U.S. House of Representatives. In his prepared remarks, AAG Baer explained that the Division “devotes substantial attention to the goods and services that consumers use every day” and uses its “scarce resources” to “provide the biggest return for American consumers, businesses, and taxpayers.”
On November 14, 2013, AAG Baer testified with Ronald T. Hosko, Assistant Director of the Criminal Investigative Division of the Federal Bureau of Investigation (FBI), during a hearing on “Cartel Prosecution: Stopping Price Fixers and Protecting Consumers” conducted by the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary of the U.S. Senate. In their joint prepared remarks, AAG Baer and Assistant Director Hosko detailed how the “FBI is a key and long-standing partner in virtually all Antitrust Division cartel investigations” and explained that the fines collected from these investigations “do not go to the Antitrust Division, but rather are contributed to the Crime Victims Fund, which helps victims of all types of crime throughout the country.”
On April 16, 2013, AAG Baer testified during a hearing on “Oversight of the Antitrust Enforcement Agencies” conducted by the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the Committee on the Judiciary of the U.S. House of Representatives. AAG Baer made a number of points in his prepared remarks, including how the Division works “closely with our colleagues at the FTC and in other federal agencies, and with state and international authorities to promote free markets and consumer interests.”
On February 20, 2014, the Division filed ex parte comments to assist the Federal Communications Commission (FCC) in its quadrennial review of its broadcast ownership rules, especially its attribution rules, which define the interests deemed comparable to ownership that can trigger the FCC’s broadcast ownership limits. The comments described the Division’s “enforcement experience in the broadcast television and radio industries, including its experience analyzing a variety of cooperation or ‘sharing’ agreements,” which “often confer influence or control of one broadcast competitor over another.” The comments observed that “[f]ailure to account for the effects of such arrangements can create opportunities to circumvent FCC ownership limits,” that the Division “believes it is appropriate” for the FCC’s “‘attribution’ rules to treat any two stations participating” in a joint sales agreement or similar agreements “as under common ownership,” and that, “even where a sharing agreement does not create an attributable interest under the Commission’s bright-line rules, the Commission should scrutinize agreements on a case-by-case basis and take action where those agreements do not serve the public interest.”
On April 11, 2013, the Division made an ex parte submission to the FCC in “In the Matter of Policies Regarding Mobile Spectrum Holdings” (WT Docket No. 12-269), which reviewed “the importance of spectrum to competition and innovation in the wireless industry.” In this submission, the Division stated its belief that “a set of well-defined, competition-focused rules for spectrum acquisitions, particularly in auctions, would best serve the dual goals of putting spectrum to use quickly and promoting consumer welfare in wireless markets.” The Division explained that a “carrier’s position in low-frequency spectrum may determine its ability to compete in offering a broad service area, including its ability to provide coverage efficiently in rural areas.” The Division’s submission concluded “that rules that ensure that smaller nationwide networks, which currently lack substantial low-frequency spectrum, have an opportunity to acquire such spectrum could improve the competitive dynamic among nationwide carriers and benefit consumers.”
On February 7, 2014, the Division issued a statement on its decision to close its investigation into Samsung’s use of its standards-essential patents. The statement explained that the Division’s investigation had focused on “Samsung’s attempts to use its SEPs to obtain exclusion orders from the U.S. International Trade Commission (ITC) relating to certain iPhone and iPad models.” It stated that, after the U.S. Trade Representative disapproved the exclusion order issued by the ITC against Apple at Samsung’s request, the Division “determined that no further action is required at this time,” but that the Division “will continue to monitor further developments in this area.” The closing statement also noted that, throughout the investigation, the Division “worked closely and consulted frequently with its colleagues at the European Commission” and that this “cooperation underscores the agencies’ common concerns over the potential harm to competition that can result from the anticompetitive use of SEPs.”
On June 20, 2013, the Division closed its investigation of Delta Air Lines’ acquisition of an equity interest in Virgin Atlantic Airways. The closing statement recounted that, in December 2012, Delta and Virgin “reached an agreement to establish a joint venture on flights between North America and the United Kingdom. At the same time, Delta entered an agreement to acquire the 49 percent stake in Virgin Atlantic currently held by Singapore Airlines for $360 million. Virgin Group will retain the majority 51 percent stake.” It explained that “[a]fter a thorough investigation of the competitive effects of the proposed equity investment and joint venture, the Antitrust Division concluded that the facts and circumstances did not warrant further investigation or action.” The statement also observed that the Division and the European Commission “cooperated closely throughout the course of their respective investigations, with frequent contact between the agencies.”