Request for Public Comment, 28902-28907 [05-10025]

Agencies

• Antitrust Modernization Commission

[Federal Register Volume 70, Number 96 (Thursday, May 19, 2005)]
[Notices]
[Pages 28902-28907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10025]


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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: https://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]
BILLING CODE 6820-YM-P