The Federal Trade Commission is expected to officially approve the antitrust settlement it agreed last month with Intel Corp, despite some disagreements among the ranks of the four commissioners. The agreement will only become final after the completion of a three-month public comment period, now underway.
The compromise agreement was passed by three of the four commissioners on the day before the trial was due to begin on March 9. The fourth commissioner, Orson Swindle, did not vote due to illness. Swindle, who opposed the government’s original complaint against Intel last summer on a three to one vote, issued a statement at the end of last week saying that he would be more concerned about the order – comprising a difficult-to-enforce mandate to ‘sin no more,’ with a major proviso and significant exceptions – if it seemed likely to impose real and significant restrictions on Intel.
As reported at the time, the FTC won a concession from Intel that prohibits it from using the threat of withheld information as a bargaining point for winning licenses for patents and intellectual property from its OEM customers. Intel can still withhold advance product information and technical details for legitimate business reasons however – if it thinks, for instance, that a rival might use the information to design competitive chips. Intel also didn’t have to admit that it holds monopoly power as part of the settlement.
I hope that my pessimism is unwarranted, but the key terms of the order seem destined to enmesh the commission in expensive, and perhaps intractable, enforcement proceedings if Intel is ever suspected of violating it, Swindle’s statement continued. Meanwhile, the other FTC commissioners, Shiela Anthony, Mozelle Thompson and chairman Robert Pitofsky also issued a statement last week, saying that they were confident that both the agency and Intel lawyers have done a commendable job of crafting a remedy that addresses serious potential competitive harm without significantly hindering Intel’s legitimate business activity.
