[Federal Register: May 19, 2005 (Volume 70, Number 96)]
[Notices]
[Page 28902-28907]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my05-44]
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ANTITRUST MODERNIZATION COMMISSION
Request for Public Comment
AGENCY: Antitrust Modernization Commission.
ACTION: Request for public comment.
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SUMMARY: The Antitrust Modernization Commission requests comments from
the public regarding specific questions relating to the issues selected
for Commission study.
DATES: Comments are due by June 17, July 1, or July 15, 2005, as
specified below.
ADDRESSES: By electronic mail: comments@amc.gov. By mail: Antitrust
Modernization Commission, Attn: Public Comments, 1120 G Street, NW.,
Suite 810, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Andrew J. Heimert, Executive Director
& General Counsel, Antitrust Modernization Commission. Telephone: (202)
233-0701; e-mail: info@amc.gov. Internet: http://www.amc.gov.
SUPPLEMENTARY INFORMATION: The Antitrust Modernization Commission was
established to ``examine whether
[[Page 28903]]
the need exists to modernize the antitrust laws and to identify and
study related issues.'' Antitrust Modernization Commission Act of 2002,
Public Law 107-273, Sec. 11053, 116 Stat. 1856. In conducting its
review of the antitrust laws, the Commission is required to ``solicit
the views of all parties concerned with the operation of the antitrust
laws.'' Id. By this request for comments, the Commission seeks to
provide a full opportunity for interested members of the public to
provide input regarding certain issues selected for Commission study.
From time to time, the Commission may issue additional requests for
comment on issues selected for study.
Comments should be submitted in written form. Comments may be
submitted on more than one topic area, but comments on each topic
should be submitted in a separate document. Each comment should
identify the topic to which it relates. Comments need not address every
question within each topic. Comments exceeding 1500 words on a
particular topic should include a brief (less than 250 word) summary.
Commenters may submit additional background materials (such as
articles, data, or other information) relating to the topic by separate
attachment.
Comments should identify the person or organization submitting the
comments. If comments are submitted by an organization, the submission
should identify a contact person within the organization. Comments
should include the following contact information for the submitter: An
address, telephone number, and email address (if available). Comments
submitted to the Commission will be made available to the public in
accordance with Federal laws.
Comments may be submitted either in hard copy or electronic form.
Electronic submissions may be sent by electronic mail to
comments@amc.gov. Comments submitted in hard copy should be delivered
to the address specified above, and should enclose, if possible, a CD-
ROM or a 3-\1/2\ inch computer diskette containing an electronic copy
of the comment. The Commission prefers to receive electronic documents
(whether by email or on CD-ROM/diskette) in portable document format
(.pdf), but also will accept comments in Microsoft Word format.
The AMC has issued this request for comments pursuant to its
authorizing statute and the Federal Advisory Committee Act. Antitrust
Modernization Commission Act of 2002, Public Law 107-273, Sec. 11053,
116 Stat. 1758, 1856; Federal Advisory Committee Act, 5 U.S.C. app.,
10(a)(3).
Topics for Comment
The Commission requests comment on the following nine topics.
Comments are requested to be submitted by the date specified.
Comments Requested by June 17, 2005
I. Remedies
A. Treble Damages
1. Are treble damage awards appropriate in civil antitrust cases?
Please support your response, addressing issues such as inducements to
private enforcement, evidence indicating that treble damage awards have
led to either over-deterrence or under-deterrence, the probability of
antitrust violations being detected, and how ``optimal'' deterrence
levels can best be determined.
2. Should other procedural changes be considered to address issues
relating to treble damage awards, such as providing courts with
discretion in awarding treble (or higher) damages, limiting the
availability of treble damages to certain types of offenses (e.g., per
se unlawful price fixing versus conduct subject to rule of reason
analysis), or imposing a heightened burden of proof?
B. Prejudgment Interest
1. Should successful antitrust plaintiffs be awarded pre-complaint
interest, cost of capital, or opportunity cost damages?
2. Are the factors used to determine when prejudgment interest is
available set forth in 15 U.S.C. 15(a)(1)-(3) appropriate? If not, how
should they be changed?
C. Attorneys' Fees
1. Should courts award attorneys' fees to successful antitrust
plaintiffs?
2. Are there circumstances in which a prevailing defendant should
be awarded attorneys' fees?
3. In areas of law other than antitrust, how effective is fee
shifting as a tool to promote private enforcement?
D. Joint and Several Liability, Contribution, and Claim Reduction
1. Should Congress and/or the courts change the current antitrust
rules regarding joint and several liability, contribution, and claim
reduction?
2. Is the evolution of rules regarding joint and several liability,
contribution, and claim reduction in other areas of the law instructive
in the context of antitrust law?
E. Remedies Available to the Federal Government
1. Should DOJ and/or the FTC have statutory authority to impose
civil fines for substantive antitrust violations? If so, in what
circumstances and what types of cases should such fines be available?
If DOJ and/or the FTC are given such authority, how, if at all, should
it affect the availability of damages awarded to private plaintiffs?
2. Should Congress clarify, expand, or limit the FTC's authority to
seek monetary relief under 15 U.S.C. 53(b)?
F. Private Injunctive Relief
1. Has the ability of states and private plaintiffs to seek
injunctive relief under 15 U.S.C. 26 benefited consumers or caused harm
to businesses or others? Please provide any specific examples,
evidence, or analyses supporting this assessment. What would be the
consequences if the availability of injunctive relief to states and
private plaintiffs under 15 U.S.C. 26 were changed? Should standing to
pursue injunctive relief under federal antitrust law be different for
states than it is for private parties?
2. Are there currently sufficient safeguards (e.g., judicial
discretion and the Cargill requirement that private plaintiffs
establish antitrust injury) to limit injunctions to appropriate
circumstances?
G. Indirect Purchaser Litigation
1. What are the costs and benefits of antitrust actions by indirect
purchasers, including their role and significance in the U.S. antitrust
enforcement system? Please be as specific as possible.
2. What burdens, if any, are imposed on courts and litigants by the
difficulty of consolidating state court antitrust actions brought on
behalf of indirect purchasers with actions brought on behalf of direct
purchasers, and how have courts and litigants responded to them? What
impact, if any, will the Class Action Fairness Act of 2005 have in this
regard?
3. Does Illinois Brick's refusal to provide indirect purchasers
with a right of recovery under federal antitrust law serve or disserve
federal antitrust policies, such as promoting optimal enforcement,
providing redress to victims of antitrust violations, preventing
multiple awards against a defendant, and avoiding undue complexity in
damage calculations?
4. What actions, if any, should Congress take to address the
inconsistencies between state and federal rules on antitrust actions by
indirect purchasers? For example, should Congress establish Illinois
Brick as the uniform national rule by preempting Illinois Brick
repealer statutes, or should it overrule Illinois Brick? If Congress
were to overrule
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Illinois Brick, should it also overrule Hanover Shoe, so that
recoveries by direct purchasers can be reduced to reflect recoveries by
indirect purchasers (or vice versa)? Assuming both direct and indirect
purchaser suits continue to exist, what procedural mechanisms should
Congress and the courts adopt to facilitate consolidation of antitrust
actions by indirect and direct purchasers?
Comments Requested by July 1, 2005
II. Robinson-Patman Act
1. What are the benefits and costs of the Robinson-Patman Act as
currently enforced? Does the Robinson-Patman Act promote or reduce
competition and consumer welfare? If so, how? What other benefits does
it afford or costs does it impose, if any?
2. What purposes should the Robinson-Patman Act serve?
3. Should the Robinson-Patman Act be repealed or modified, or its
interpretation by the courts altered? Please identify specific changes
and explain why they should be adopted. For example:
a. Should private plaintiffs asserting Robinson-Patman claims be
required to prove ``antitrust injury,'' i.e., proof of injury
reflecting the anticompetitive effect of the challenged conduct?
b. Should the inference of harm to competition under recognized in
FTC v. Morton Salt Co., 334 U.S. 37 (1948), be modified, e.g., by
requiring plaintiffs to make a showing of harm to competition similar
to that required to establish a Sherman Act violation?
c. Does limiting the substantive provisions of the Robinson-Patman
Act to the sale of commodities, not services, make sense in today's
economy?
d. What role should buyer market power play in applying the
Robinson-Patman Act?
4. To what extent do state antitrust laws prohibit price
discrimination that is also prohibited by the Robinson-Patman Act?
Would repeal or reform of the Robinson-Patman Act affect the likelihood
that states would adopt their own prohibitions on price discrimination?
How, if at all, would repeal or reform of the Robinson-Patman Act
affect the amount of litigation under such state laws?
Comments Requested by July 15, 2005
III. Enforcement Institutions
A. Dual Federal Merger Enforcement
1. Should merger enforcement continue to be administered by two
different Federal agencies? What are the advantages and disadvantages
resulting from having two different federal antitrust enforcement
agencies reviewing mergers? For example, does it result in bureaucratic
duplication, inconsistency in treatment, more thorough enforcement,
beneficial diversity in enforcement perspectives, or competition
between antitrust enforcement agencies?
2. Should merger enforcement authority be reallocated between the
FTC and DOJ? If so, how should it be reallocated? Please provide
specific reasons for proposed reallocations.
3. Commenters have advised that disagreements between the FTC and
DOJ concerning the clearance of mergers for review by one or the other
agency have unreasonably delayed regulatory review in some cases.
Should the FTC-DOJ merger review clearance process be revised to make
it more efficient? If so, how?
B. Differential Merger Enforcement Standards
1. Does the standard the DOJ must meet to obtain a preliminary
injunction to block a merger differ, as a practical matter, from that
the FTC must meet? Has any such difference affected the outcome of a
decision, or might it reasonably be expected to affect the outcome?
2. To the extent there is a difference in legal standards, should
the different standards be harmonized? If so, how?
3. Should there continue to be a difference in the procedural
aspects of Federal agency challenges to mergers, specifically that the
FTC can commence an administrative proceeding in addition to seeking a
court order to block a transaction? If the procedural aspects of agency
challenges to mergers should be harmonized, how should that be done?
4. What practical burdens are imposed on private parties by the
FTC's policy of pursuing permanent relief through an administrative
proceeding (in some instances) after failing to obtain a preliminary
injunction?
C. Allocation of Merger Enforcement Among States, Private Plaintiffs,
and Federal Agencies
1. What role should state attorneys general play in merger
enforcement? Please support your response with specific examples,
evidence, and analysis regarding burden, benefits, delay, and/or
uncertainty involved in multiple State and Federal merger reviews.
2. Should merger enforcement be limited to the federal level, or
should other steps be taken to ensure that a single merger will not be
subject to challenge by multiple private and government enforcers? To
what extent has the protocol for coordination of simultaneous merger
investigations established by the federal enforcement antitrust
agencies and state attorneys general succeeded in addressing issues of
burden, delay, and/or uncertainty associated with multiple state and
federal merger review?
3. What role should private parties play in merger enforcement, and
what authority should they have to seek to enjoin a merger? Please
support your response with specific examples, evidence, and analysis
regarding burden, benefits, delay, and/or uncertainty involved.
4. What lessons, if any, can be learned from Europe's referral (or
``one-stop shop'') system of allocating merger enforcement between the
EC and Member States? How does the more regulation-oriented European
tradition (as opposed to a more enforcement-oriented U.S. tradition)
affect any comparison of the two systems?
D. Role of States in Enforcing Federal Antitrust Laws Outside the
Merger Area
1. What role should state attorneys general play in non-merger
civil enforcement? To what extent is state parens patriae standing
useful or needed? Please support your response with specific examples,
evidence, and analysis?
2. Should state and federal enforcers divide responsibility for
non-merger civil antitrust enforcement based on whether the primary
locus of alleged harm (or primary markets affected) is intrastate,
interstate, or global? If so, how should such an allocation be
implemented?
IV. Exclusionary Conduct
1. What are the circumstances in which a firm's refusal to deal
with (or discrimination against) rivals in adjacent markets violates
Section 2 of the Sherman Act? Does the Supreme Court's decision in
Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP,
540 U.S. 398 (2004), state an appropriate legal standard in this
respect?
2. Should the essential facilities doctrine constitute an
independent basis of liability for single-firm conduct under Section 2
of the Sherman Act?
3. What should be the standards for determining when a firm's
product bundling or bundled pricing violates Section 2 of the Sherman
Act?
4. How should the standards for exclusionary or anticompetitive
conduct be determined (e.g., through legislation, judicial development,
amicus efforts by
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DOJ and FTC), particularly if you believe the current standards are not
appropriate or clear?
V. Immunities & Exemptions
A. General Immunities & Exemptions
1. In what circumstances, and with what limitations, should
Congress provide antitrust immunities and exemptions? In your response,
please address the following questions:
a. What generally applicable methodology, if any, should Congress
use to assess the costs and benefits of immunities and exemptions?
b. Should Congress analyze different types of immunities and
exemptions differently? Are those that do not protect core
anticompetitive conduct (e.g., price fixing) preferable to those that
exempt all joint activities? Are those that eliminate, for example,
treble damages, but retain single damage liability acceptable? For
example, does the National Cooperative Research and Production Act, 15
U.S.C. 4301-06, provide a helpful alternative approach to blanket
exemptions?
c. Should Congress subject immunities and exemptions to a
``sunset'' provision, thereby requiring congressional review and action
at regular intervals as a condition of renewal?
d. Should the proponents of an immunity or exemption bear the
burden of proving that the benefits exceed the costs?
2. The Commission intends to conduct a general evaluation of
antitrust immunities and exemptions, and currently contemplates
focusing, for illustrative purposes, on the first eight immunities and
exemptions listed below (a.-h.). Please provide any relevant
information about any of the immunities and exemptions below, including
their costs, benefits, and impact upon commerce.
a. Capper-Volstead Act. 7 U.S.C. 291-92
b. Non-profit agricultural cooperatives exemption. 15 U.S.C. 17.
c. Agricultural Marketing Agreement Act. 7 U.S.C. 608b, 608c.
d. Fishermen's Collective Marketing Act. 15 U.S.C. 521-22.
e. Webb-Pomerene Export Act. 15 U.S.C. 61-66.
f. Export Trading Company Act. 15 U.S.C. 4001-21.
g. McCarran-Ferguson Act. 15 U.S.C. 1011-15.
h. Shipping Act. 46 U.S.C. app. 1701 et seq.
i. Anti-Hog-Cholera Serum and Hog-Cholera Virus Act. 7 U.S.C. 852.
j. Airline flight schedule exemption. 49 U.S.C. 40129.
k. Air transportation exemption. 49 U.S.C. 41308-09.
l. Baseball exemption. See, e.g., Fed. Baseball Club of Baltimore,
Inc. v. Nat'l League of Prof'l Baseball Clubs, 259 U.S. 200 (1922);
Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); Flood v. Kuhn,
407 U.S. 258 (1972); Curt Flood Act, Pub. L. 105-297, 2, 112 Stat. 2824
(1998).
m. Charitable Donation Antitrust Immunity Act. 15 U.S.C. 37-37a.
n. Defense Production Act. 50 U.S.C. app. 2158.
o. Filed rate/Keogh doctrine. See, e.g., Keogh v. Chicago & N. W.
Ry. Co., 260 U.S. 156 (1922).
p. Health Care Quality Improvement Act. 42 U.S.C. 11101-52.
q. Labor exemptions (statutory and non-statutory). See, e.g., 15
U.S.C. 17; 29 U.S.C. 52, 101-10, 113-15, 151-169; Connell Constr. Co.
v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975).
r. Local Government Antitrust Act. 15 U.S.C. 34-36.
s. Medical resident matching program exemption. 15 U.S.C. 37b.
t. Motor transportation exemption. 49 U.S.C. 13703.
u. National Cooperative Research and Production Act. 15 U.S.C.
4301-06.
v. Natural Gas Policy Act. 15 U.S.C. 3364(e).
w. Need-Based Educational Aid Act. 15 U.S.C. 1 note.
x. Newspaper Preservation Act. 15 U.S.C. 1801-04.
y. Railroad transportation exemption. 49 U.S.C. 10706.
z. Small Business Act. 15 U.S.C. 638(d), 640.
aa. Soft Drink Interbrand Competition Act. 15 U.S.C. 3501-03.
bb. Sports Broadcasting Act. 15 U.S.C. 1291-95.
cc. Standard Setting Development Organization Advancement Act. 15
U.S.C. 4301-05, 4301 note.
dd. Television Program Improvement Act. 47 U.S.C. 303c.
ee. United States Postal Service exemption. See, e.g., United
States Postal Serv. v. Flamingo Indus. Ltd., 540 U.S. 736 (2004).
B. State Action Doctrine
1. Should courts change or clarify the application of the state
action doctrine?
a. Do courts currently interpret the ``clear articulation'' prong
of the state action doctrine so as to immunize conduct only in
circumstances in which the state intended to displace competition? Do
courts unduly rely on ``foreseeability'' analysis in applying the
``clear articulation'' prong?
b. Should courts rely on the elements proposed by the FTC Staff's
State Action Task Force (state authorization of conduct at issue and
deliberate adoption of a policy to displace competition in the manner
at issue) to determine whether the ``clear articulation'' prong is
satisfied? See Federal Trade Commission Staff, Report Of The State
Action Task Force 51 (Sept. 2003) (``FTC Report'').
c. Should there be other changes to interpretation and application
of the ``clear articulation'' prong?
2. Should courts change or clarify application of the active
supervision prong?
a. Do courts currently interpret the ``active supervision'' prong
of the state action doctrine so as to subject immunized activity to
meaningful state oversight?
b. Should courts rely on the elements proposed by the FTC Staff's
State Action Task Force (development of adequate factual record,
written decision, and specific assessment) to determine whether the
``active supervision'' prong is satisfied? Are these elements workable
in practice? See FTC Report at 55.
c. Should courts make any other changes when interpreting and
applying the ``active supervision'' prong?
3. Should courts require different degrees of ``clear
articulation'' by legislators and different levels of ``active
supervision'' by executive or regulatory entities depending upon the
circumstances (a ``tiered approach'')?
4. Do courts in applying the state action doctrine currently
account for spillover effects (anticompetitive conduct immunized by one
state that has a deleterious effect on consumers in other states)? If
not, should courts address spillover effects under the state action
doctrine? What standards should govern that analysis?
5. How should courts apply the state action doctrine to various
governmental entities?
a. Should state agencies and departments be subject to the ``active
supervision'' prong of the state action doctrine? If so, who should
actively supervise these state entities?
b. When should courts treat ``quasi-governmental'' entities as a
private actor (subject to the ``active supervision'' prong) or as a
municipality (potentially not subject to the ``active supervision''
prong)?
c. Should courts apply the ``active supervision'' prong to a
municipality or state entity when it acts as a ``market participant''?
If so, how should that entity's activities as a regulator be
distinguished from its activities as a ``market participant''?
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d. Should Congress repeal the Local Government Antitrust Act of
1984?
VI. International
1. Should the FTAIA be amended to clarify the circumstances in
which the Sherman Act and FTC Act apply to extraterritorial
anticompetitive conduct?
2. Are there technical or procedural steps the United States could
take to facilitate further coordination with foreign antitrust
enforcement authorities?
a. Are there technical amendments to the International Antitrust
Enforcement Assistance Act of 1994 (``IAEAA'') that could enhance
coordination between the United States and foreign antitrust
enforcement authorities?
b. Are there technical changes to the budget authority granted U.S.
antitrust agencies that could further facilitate the provision of
international antitrust technical assistance to foreign antitrust
authorities?
VII. Merger Enforcement
A. Federal Antitrust Merger Enforcement Policy Generally
1. Has current U.S. merger enforcement policy been effective in
ensuring competitively operating markets without unduly hampering the
ability of companies to operate efficiently and compete in global
markets? Please identify specific examples, evidence, or analyses
supporting your assessment.
B. Transparency in Federal Agency Merger Review
1. Several commenters in the first phase of the Commission's work
advised that the Commission should address whether there is sufficient
transparency in federal antitrust enforcement policy. Do the Horizontal
Merger Guidelines provide informative guidance to merging parties
regarding the likely antitrust treatment of their transactions, and do
they appear accurately to reflect actual current FTC and DOJ
enforcement practices (for example, with respect to market definition
and concentration threshold presumptions of antitrust concern)? Please
support your response with specific examples.
2. Should the federal antitrust enforcement agencies provide more
guidance regarding their enforcement policies, including, for example,
when they decide not to challenge a transaction?
C. Efficiencies in Merger Analysis
1. Do the U.S. courts and federal antitrust enforcement agencies
adequately consider efficiencies in merger analysis? Please identify
specific examples, evidence, or analyses supporting your assessment.
2. What types of efficiencies should be recognized in antitrust
merger analysis and in what circumstances should they be considered or
not considered in determining the legality of a merger? How should
courts and agencies evaluate claims of efficiencies? What should be the
burdens of production and proof for establishing efficiencies?
3. What is the appropriate welfare standard to use in assessing
efficiencies--a consumer welfare standard, a total welfare standard, or
some alternative standard?
D. The Hart-Scott-Rodino Pre-Merger Review Process
1. Several commenters in the first phase of the Commission's work
advised that the Commission should study the burden involved in
responding to HSR ``Second Request'' merger investigations. The
Commission invites companies and/or their counsel who have experienced
Second Request investigations to comment on the burden involved,
providing specific information on costs by type (e.g., attorneys' fees,
economist and other expert fees, document and electronic information
production costs, employee time, and costs associated with delay of
closing) and length of the investigation.
2. Should changes be made to the HSR pre-merger notification
system, e.g., with respect to HSR reporting thresholds or the
information required to be included in the initial filing?
3. Should any changes be made to the HSR ``Second Request'' process
currently used by the FTC and DOJ? Please address both the possibility
of broad systemic change and of more limited changes within the
existing system, being as specific as possible and considering, for
example (and without limitation): (i) Whether the U.S. should adopt
processes similar to those used by other jurisdictions, such as those
employed by the European Union (e.g., the Form CO) or Canada (e.g.,
long and short-form reporting); (ii) the extent to which various types
of information sought in a typical Second Request contribute to merger
assessment; (iii) whether and how the burden associated with documents
and data requests could be reduced without materially impeding the
federal agencies' ability to execute their enforcement
responsibilities; (iv) how merging companies can expedite the HSR
process.
VIII. New Economy
A. Antitrust Analysis of Industries in Which Innovation, Intellectual
Property, and Technological Change are Central Features
1. Does antitrust doctrine focus on static analysis, and does this
affect its application to dynamic industries?
2. What features, if any, of dynamic, innovation-driven industries
pose distinctive problems for antitrust analysis, and what impact, if
any, should those features have on the application of antitrust
analysis to these industries?
3. Are different standards or benchmarks for market definition or
market power appropriate when addressing dynamic, innovation-driven
industries, for example, to reflect the fact that firms in such
industries may depend on the opportunity to set prices above marginal
costs to earn returns? Or, are existing antitrust principles
sufficiently flexible to accommodate the facts relevant to dynamic
industries?
B. Specific Issues at the Interface of Intellectual Property,
Innovation, and Antitrust
1. Should there be a presumption of market power in tying cases
when there is a patent or copyright? What significance should be
attached to the existence of a patent or copyright in assessing market
power in tying cases and in other contexts?
2. In what circumstances, if any, should the two-year time horizon
used in the Horizontal Merger Guidelines to assess the timeliness of
entry be adjusted? For example, should the time period be lengthened to
include newly developed products when the introduction of those
products is likely to erode market power? Should it matter if the newly
developed products will not erode market power within two years? Is
there a length of time for which the possession of market power should
not be viewed as raising antitrust concerns?
3. Should antitrust law be concerned with ``innovation markets''?
If so, how should antitrust enforcers analyze innovation markets? How
often are ``innovation markets'' analyzed in antitrust enforcement?
C. Examination of the Reports on the Patent System by the National
Academies Board on Science, Technology, and Economic Policy and the
Federal Trade Commission
The National Academies Board on Science, Technology, and Economic
Policy and the Federal Trade Commission have both recently
[[Page 28907]]
conducted extensive studies of patent-related activity and the
operation of the patent system, and issued reports including
recommendations for reform. See Stephen A. Merrill, Richard C. Levin &
Mark B. Myers, A Patent System for the 21st Century (2004); Federal
Trade Commission, To Promote Innovation: The Proper Balance of
Competition and Patent Law and Policy (Oct. 2003).
1. Do the reports fully capture the role of patents and
developments in patent-related activity (e.g., applications, grants,
licensing, and litigation) over the past 25 years?
2. Are the concerns or problems regarding the operation of the
patent system identified in the two reports well-founded?
3. Which, if any, of the recommendations for changes to the patent
system made in those two reports should be adopted?
4. Are there other issues regarding the operation of the patent
system not addressed in either report that should be considered by the
Antitrust Modernization Commission? Please be specific in identifying
any issue and the reasons for its importance.
IX. Regulated Industries
1. What role, if any, should antitrust enforcement play in
regulated industries, particularly industries in transition to
deregulation? How should authority be allocated between antitrust
enforcers and regulatory agencies to best promote consumer welfare in
regulated industries?
2. How, if at all, should antitrust enforcement take into account
regulatory systems affecting important competitive aspects of an
industry? How, if at all, should regulatory agencies take into account
the availability of antitrust remedies?
3. What is the appropriate standard for determining the extent to
which the antitrust laws apply to regulated industries where the
regulatory structure contains no specific antitrust exemption? For
example, in what circumstances should antitrust immunity be implied as
a result of a regulatory structure?
4. How should courts treat antitrust claims where the relevant
conduct is subject to regulation, but the regulatory legislation
contains a ``savings clause'' providing that the antitrust laws
continue to apply to the conduct?
5. Should Congress and regulatory agencies set industry-specific
standards for particular antitrust violations that may conflict with
general standards for the same violations?
6. When a merger or acquisition involves one or more firms in a
regulated industry, how should authority for merger review be allocated
between the antitrust agencies (DOJ and FTC) and the relevant
regulatory agency?
a. Are there additional costs and delay when two agencies (one
antitrust, one regulatory) both analyze the antitrust effects of the
same merger? Are there benefits to such dual review?
b. Should regulatory agencies defer to antitrust analysis by the
antitrust agencies, or should both the antitrust and regulatory
agencies conduct separate antitrust analyses in performing merger
reviews? Should the antitrust agencies have primary responsibility or
simply an advisory role with respect to antitrust analysis in merger
review?
In your response, please refer specifically to the following
contexts:
i. Mergers or acquisitions involving financial institutions. See 12
U.S.C. 1467a, 1828, 1842.
ii. Mergers or acquisitions involving certain media companies
(e.g., radio or television broadcasters, satellite, and cable
companies) and common carriers. See 47 U.S.C. 214, 310.
iii. Mergers or acquisitions of rail carriers subject to approval
by the Surface Transportation Board. See 49 U.S.C. 11321, 11323-24.
iv. Mergers or acquisitions involving motor carriers of passengers.
See 49 U.S.C. 14303.
v. Pooling agreements among certain motor carriers. See 49 U.S.C.
14302.
vi. Certain agreements involving domestic and foreign airlines. See
49 U.S.C. 41308-09. vii. Acquisitions of assets of natural gas
companies. See 15 U.S.C. 717f.
viii. Mergers or acquisitions of electric power companies. See 16
U.S.C. 824b.
ix. License applications subject to the approval of the U.S.
Nuclear Regulatory Commission. See 42 U.S.C. 2135.
x. Issuance of federal coal leases. See 30 U.S.C. 184(l).
xi. Issuance or transfer of licenses for exploration of hard
minerals in deep seabed sites. See 30 U.S.C. 1413(d).
xii. Issuance of oil and gas leases on submerged lands of the Outer
Continental Shelf. See 43 U.S.C. 1337(c).
Dated: May 16, 2005.
By direction of the Antitrust Modernization Commission.
Andrew J. Heimert,
Executive Director & General Counsel, Antitrust Modernization
Commission.
[FR Doc. 05-10025 Filed 5-18-05; 8:45 am]