Broadcom Incorporated; Analysis of Agreement Containing Consent Order To Aid Public Comment, 43544-43548 [2021-16655]

Download as PDF 43544 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices The FTC requests that the Office of Management and Budget (OMB) extend for three years the current Paperwork Reduction Act (PRA) clearance for information collection requirements contained in the Rules and Regulations under the Fur Products Labeling Act (Fur Rules or Rules). That clearance expires on August 31, 2021. DATES: Comments must be received by September 8, 2021. ADDRESSES: Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/ PRAMain. Find this particular information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function. The reginfo.gov web link is a United States Government website produced by OMB and the General Services Administration (GSA). Under PRA requirements, OMB’s Office of Information and Regulatory Affairs (OIRA) reviews Federal information collections. FOR FURTHER INFORMATION CONTACT: Jock K. Chung, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Mail Code CC–9528, 600 Pennsylvania Ave. NW, Washington, DC 20580, (202) 326–2984. SUPPLEMENTARY INFORMATION: Title: Rules and Regulations under the Fur Products Labeling Act, 16 CFR part 301. OMB Control Number: 3084–0099. Type of Review: Extension of a currently approved collection. Likely Respondents: Retailers, manufacturers, processors, and importers of furs and fur products. Frequency of Response: Third party disclosure; recordkeeping requirement. Estimated Annual Hours Burden: 303,001 hours (50,100 hours for recordkeeping + 252,901 hours for disclosure). Recordkeeping: 50,100 hours [950 retailers incur an average recordkeeping burden of about 18 hours per year (17,100 hours total); 75 manufacturers incur an average recordkeeping burden of about 60 hours per year (4,500 hours total); and 950 importers of furs and fur products incur an average recordkeeping burden of 30 hours per year (28,500 hours total)]. Disclosure: 252,901 hours [(214,834 hours for labeling + 67 hours for invoices + 38,000 hours for advertising)]. Estimated Annual Cost Burden: $5,194,259 (solely relating to labor costs). lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 17:26 Aug 06, 2021 Jkt 253001 Abstract: The Fur Products Labeling Act (Fur Act) 1 prohibits the misbranding and false advertising of fur products. The Fur Rules establish disclosure requirements that assist consumers in making informed purchasing decisions, and recordkeeping requirements that assist the Commission in enforcing the Rules. The Rules also provide a procedure for exemption from certain disclosure provisions under the Fur Act. Request for Comment On June 2, 2021, the FTC sought public comment on the information collection requirements associated with the Rule. 86 FR 29581. The Commission received no germane comments. Pursuant to the OMB regulations, 5 CFR part 1320, that implement the PRA, 44 U.S.C. 3501 et seq., the FTC is providing this second opportunity for public comment while seeking OMB approval to renew the pre-existing clearance for the Rules. Your comment—including your name and your state—will be placed on the public record of this proceeding. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone’s Social Security number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any ‘‘trade secret or any commercial or financial information which . . . is privileged or confidential’’—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names. Josephine Liu, Assistant General Counsel for Legal Counsel. [FR Doc. 2021–16956 Filed 8–6–21; 8:45 am] BILLING CODE 6750–01–P 1 15 PO 00000 U.S.C. 69 et seq. Frm 00027 Fmt 4703 Sfmt 4703 FEDERAL TRADE COMMISSION [File No. 181 0205] Broadcom Incorporated; Analysis of Agreement Containing Consent Order To Aid Public Comment Federal Trade Commission. Proposed consent agreement; request for comment. AGENCY: ACTION: The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Agreement Containing Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations. DATES: Comments must be received on or before September 8, 2021. ADDRESSES: Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Please write ‘‘Broadcom Incorporated; File No. 181 0205’’ on your comment, and file your comment online at https://www.regulations.gov by following the instructions on the webbased form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Kathleen Clair (202–326–3435), Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at https:// SUMMARY: E:\FR\FM\09AUN1.SGM 09AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices www.ftc.gov/news-events/commissionactions. You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before September 8, 2021. Write ‘‘Broadcom Incorporated; File No. 181 0205’’ on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the https:// www.regulations.gov website. Due to the COVID–19 pandemic and the agency’s heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the https:// www.regulations.gov website. If you prefer to file your comment on paper, write ‘‘Broadcom Incorporated; File No. 181 0205’’ on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC–5610 (Annex D), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service. Because your comment will be placed on the publicly accessible website at https://www.regulations.gov, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include sensitive personal information, such as your or anyone else’s Social Security number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any ‘‘trade secret or any commercial or financial information which . . . is privileged or confidential’’—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names. VerDate Sep<11>2014 17:26 Aug 06, 2021 Jkt 253001 Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled ‘‘Confidential,’’ and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the https:// www.regulations.gov website—as legally required by FTC Rule 4.9(b)—we cannot redact or remove your comment from that website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request. Visit the FTC website at https:// www.ftc.gov to read this Notice and the news release describing the proposed settlement. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before September 8, 2021. For information on the Commission’s privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/ privacy-policy. Analysis of Agreement Containing Consent Order To Aid Public Comment I. Introduction The Federal Trade Commission has accepted, subject to final approval, a consent agreement with Broadcom Incorporated. Broadcom designs, develops, and sells semiconductor components for a wide range of computing and telecommunications applications, including for set-top boxes (‘‘STBs’’) and broadband devices such as modems. (STBs and broadband devices are sometimes collectively referred to as customer premises equipment or ‘‘CPE’’ or ‘‘CPE devices.’’) As further described below, the consent agreement contains a proposed order addressing allegations in the proposed complaint that (1) with regard to certain components used in CPE devices, Broadcom unlawfully maintained a monopoly and unreasonably restrained trade through exclusive dealing and related conduct, and (2) with regard to certain other PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 43545 components used in CPE devices, Broadcom unreasonably restrained trade through cross-product conditioning, all in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45. The proposed order has been placed on the public record for 30 days in order to receive comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the consent agreement and the comments received and will decide whether it should withdraw from the consent agreement and take appropriate action or make the proposed order final. The purpose of this analysis is to facilitate public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint, the consent agreement, or the proposed order, or to modify their terms in any way. The consent agreement is for settlement purposes only and does not constitute an admission by Broadcom that the law has been violated as alleged in the complaint or that the facts alleged in the complaint, other than jurisdictional facts, are true. II. The Complaint The complaint makes the following allegations. A. Background Consumers use STBs and broadband devices in their homes to access television and internet services. Service providers such as telecommunications and cable companies supply their customers with the CPE devices needed to access television and internet services. Broadcom makes semiconductor components that are used in CPE devices. These include a ‘‘system on a chip’’ or ‘‘SOC,’’ which is the core component directing the functions and features of a CPE device; a ‘‘front-end’’ chip, which converts incoming analog signals to digital signals to be read by the SOC; and a ‘‘Wi-Fi’’ chip, which enables a device to connect to a wireless network. Original equipment manufacturers (‘‘OEMs’’) incorporate these components into STBs and broadband devices, which they typically build to service-provider specifications and sell to service providers. Broadcom has long been the dominant supplier of (i) SOCs for traditional ‘‘broadcast’’ STBs,1 (ii) SOCs for DSL 1 ‘‘Broadcast’’ STBs, sometimes referred to as ‘‘traditional’’ STBs, access television signals over a broadcast interface (e.g., cable, satellite, or fiber), as distinct from ‘‘streaming’’ STBs, which access only E:\FR\FM\09AUN1.SGM Continued 09AUN1 43546 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices lotter on DSK11XQN23PROD with NOTICES1 broadband devices, and (iii) SOCs for fiber broadband devices (the ‘‘Monopolized Products’’). In addition, Broadcom is one of few significant suppliers of (iv) Wi-Fi chips for CPE devices, (v) front-end chips for CPE devices, (vi) SOCs for ‘‘streaming’’ STBs, and (vii) SOCs for cable broadband devices (collectively, the ‘‘Related Products,’’ and together with the Monopolized Products, the ‘‘Relevant Products’’).2 Broadcom also provides essential ongoing engineering and software support services for devices containing its components. The markets for Monopolized Products and Related Products are concentrated and have significant barriers to entry and expansion. As early as 2016, Broadcom recognized that it faced competitive threats to its monopoly power in Monopolized Products from low-priced, nascent rivals. Broadcom understood that nascent rivals could, by working with key OEMs and service providers, become stronger, more effective competitors. Leading service providers and OEMs were seeking to lessen their dependence on Broadcom and to foster competition in CPE component markets. These customers sought componentsupplier diversity for multiple reasons, including to promote competitive pricing and to ensure continuity of supply. Another factor threatening Broadcom’s monopoly power was the ongoing ‘‘cord-cutting’’ trend, whereby consumers were beginning to move away from traditional ‘‘broadcast’’ (e.g., cable or satellite) television service and instead to access television and other video content via a ‘‘streaming’’ internet connection. This trend threatened Broadcom because its market position was stronger in ‘‘broadcast’’ STB SOCs (where it has monopoly power) than in ‘‘streaming’’ STB SOCs. These market conditions presented Broadcom with the incentive and opportunity to engage in anticompetitive conduct aimed at maintaining its monopoly power in markets for Monopolized Products and to use that power to weaken rivals and harm competition in markets for Related Products. B. Broadcom’s Anticompetitive Conduct Broadcom acted to maintain its monopoly positions and unreasonably restrain competition by implementing a wide-ranging exclusivity program in which it conditioned customers’ access streaming ‘‘internet protocol’’ (IP) signals, often over an internet connection. 2 The proposed order refers to Monopolized Products and Related Products as ‘‘Primary Products’’ and ‘‘Secondary Products,’’ respectively. VerDate Sep<11>2014 17:26 Aug 06, 2021 Jkt 253001 to Monopolized Products and support services for these products on commitments to source Relevant Products from Broadcom on an exclusive or near-exclusive basis. Broadcom implemented this exclusivity program through a series of long-term contracts entered with both OEMs and service providers, and through an accompanying campaign of ad hoc threats and retaliation. As a result, sales opportunities for Broadcom’s rivals were severely restricted. Between 2016 and the present, Broadcom negotiated and entered agreements with leading OEMs pursuant to which the OEMs agreed, for contract and renewal terms spanning multiple years, to purchase, use, or bid Broadcom’s Relevant Products in STBs and broadband devices on an exclusive or near-exclusive basis. In all, Broadcom entered exclusive or near- exclusive agreements with at least ten OEMs which collectively are responsible for a majority of STB and broadband device sales worldwide and even higher percentages of STB and broadband device sales in the United States. These OEMs included the largest and most capable CPE OEMs—those with the largest market shares, the most extensive engineering and design capabilities, and the strongest reputations and relationships with downstream service provider customers. Broadcom also negotiated and entered a series of agreements with major service providers pursuant to which the service providers committed, for contract terms spanning multiple years, to use Broadcom’s Relevant Products on an exclusive or near-exclusive basis for their STBs and broadband devices. As with the OEMs targeted by Broadcom, these were among the largest, most advanced, and most innovative service providers in the world—those best positioned, absent their agreements with Broadcom, to enable Broadcom’s nascent competitors. In the course of securing and policing these long-term agreements, and also of obtaining exclusive or near-exclusive business from customers with which it did not enter formal long-term agreements, Broadcom routinely employed coercive leveraging tactics grounded in its monopoly power and spanning across product categories. For example, Broadcom communicated to OEM customers that disloyalty for even a single bid involving a single Relevant Product could mean loss of favorable price and non-price terms across numerous product lines, including Monopolized Products unrelated to that specific bid. And it communicated to service providers that if a service PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 provider did not limit its purchases from Broadcom’s rivals, Broadcom would implement large increases in the fees it charged for support services on devices containing Broadcom Monopolized Products already deployed on the service providers’ networks. C. Competitive Impact of Broadcom’s Conduct Broadcom’s exclusivity program weakened competitors by foreclosing them from substantial portions of the markets for Relevant Products. It raised its rivals’ costs by forcing rivals competing for a design award to be prepared to compensate customers for the penalties—increased prices and/or degraded terms—that Broadcom threatened to impose on the customer as to other designs and other covered products. Broadcom’s conduct deprived rivals of opportunities to work with key OEMs and service providers, thereby degrading rivals’ ability to obtain scale and commercial validation, improve their engineering capabilities, offer better products to customers, and position themselves to win business in the future. As a result, rivals diverted resources away from, divested from, and/or considered exiting markets for Monopolized Products. By foreclosing rivals from substantial sales opportunities other than through competition on the merits, Broadcom has maintained its monopoly in the markets for Monopolized Products and has unreasonably restrained competition in the markets for all Relevant Products, in each case harming price and non-price competition, reducing innovation, and reducing customer choice. No legitimate procompetitive efficiencies justify Broadcom’s conduct or outweigh the substantial anticompetitive effects thereof. Any legitimate objectives of Broadcom’s conduct could have been achieved through significantly less restrictive means. III. Legal Analysis Section 5 of the FTC Act prohibits unfair methods of competition, including agreements in restraint of trade prohibited by Section 1 of the Sherman Act and monopolization prohibited by Section 2 of the Sherman Act.3 Under Section 1, a plaintiff must show (1) concerted action that (2) unreasonably restrains competition.4 A Section 2 monopolization offense 3 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333 U.S. 683, 693–94 (1948). 4 15 U.S.C. 1; see, e.g., Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 342–43, (1982). E:\FR\FM\09AUN1.SGM 09AUN1 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices requires proof of ‘‘(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of superior product, business acumen or historic accident.’’ 5 A. Monopolization and Restraint of Trade as to Monopolized Products lotter on DSK11XQN23PROD with NOTICES1 An exclusive dealing arrangement is ‘‘an agreement in which a buyer agrees to purchase certain goods or services only from a particular seller for a certain period of time.’’ 6 Exclusivity need not be expressly defined by a written contract, but can also be identified by ‘‘look[ing] past the terms of the contract to ascertain the relationship between the parties and the effect of the agreement in the real world.’’ 7 No single contract needs to require 100% exclusivity.8 The assessment must look beyond ‘‘formalistic distinctions’’ and focus on ‘‘market realities.’’ 9 Exclusive dealing may be unlawful where it enables a firm to maintain or enhance monopoly or market power by impairing the ability of rivals to grow into effective competitors or by depriving customers of the ability to make a meaningful choice.10 Of particular relevance is whether exclusive dealing has ‘‘foreclose[d] competition in such a substantial share of the relevant market so as to adversely affect competition.’’ 11 Exclusive dealing may violate Section 1 or Section 2 of the Sherman Act, but is ‘‘of special concern when imposed by a monopolist.’’ 12 Thus, a Section 2 exclusive dealing claim typically requires a greater degree of market power, but a lesser degree of 5 In re McWane, Inc., No. 9351, 2014 WL 556261, at *11 (F.T.C. Jan. 30, 2014), aff’d, 783 F.3d 814 (11th Cir. 2015) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966)); 15 U.S.C. 2. 6 ZF Meritor v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012). 7 Id. (cleaned up) (noting also that ‘‘de facto exclusive dealing claims are cognizable under the antitrust laws.’’); see also Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 326 (1961) (exclusive dealing principles apply not only to contracts that expressly require exclusivity, but also to those that have the ‘‘practical effect’’ of inducing a customer to purchase exclusively from a dominant seller). 8 ZF Meritor, 696 F.3d at 270; see also Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 466–67 (1992) (‘‘Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law.’’). 9 Eastman Kodak, 504 U.S. at 466. 10 See, e.g., In re McWane, 2014 WL 556261 at *19, 28. 11 ZF Meritor, 696 F.3d at 270; see also McWane, 783 F.3d at 835. 12 ZF Meritor, 696 F.3d at 271. VerDate Sep<11>2014 17:26 Aug 06, 2021 Jkt 253001 market foreclosure, than an exclusive dealing claim under Section 1.13 The factual allegations in the complaint support a finding of exclusive dealing as to the Monopolized Products in violation of Sections 1 and 2 of the Sherman Act. Broadcom has monopoly power in the sale of these products, as demonstrated by both direct and indirect evidence, including high shares of markets with significant entry barriers. And Broadcom has engaged in exclusive dealing with OEMs and service providers through both formal agreements that bar purchases of Monopolized Products from a Broadcom rival and ad hoc threats of retaliation if a customer purchases from a Broadcom rival. Broadcom’s exclusive deals foreclosed substantial and competitively important portions of the markets for Monopolized Products, weakening rivals, harming competition, maintaining Broadcom’s monopoly position, and resulting in reduced customer choice, higher prices, and less innovation in markets for Monopolized Products. B. Restraint of Trade as to Related Products In addition to harming competition in the markets for Monopolized Products, Broadcom leveraged its monopoly power in the markets for Monopolized Products to foreclose rivals and harm competition in the markets for Related Products. As it involves the interaction of two or more markets, the conduct is appropriately analyzed with reference to tying precedent. To demonstrate tying in violation of Section 1, a plaintiff must show (1) separate markets for the tying and tied products; (2) defendant’s market power in the tying market; (3) the existence of a tie, and (4) that the arrangement forecloses a substantial volume of interstate commerce in the market for the tied product.14 Coercion, or ‘‘the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase 13 See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 69–70 (D.C. Cir. 2001). 14 See, e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461–62 (1992) (quoting N. Pac. R. Co. v. United States, 356 U.S. 1, 5–6 (1958) and Fortner Enters., Inc. v. United States Steel Corp, 394 U.S. 495, 503 (1969)); United States v. Microsoft, 253 F.3d 34, 85, 87 (D.C. Cir. 2001) (‘‘[t]he core concern is that tying prevents goods from competing directly for consumer choice on their merits’’); Tic-X-Press v. Omni Promotions Co., 815 F.2d 1407, 1414 (11th Cir. 1987); see also Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 468 (7th Cir. 2020); Inre Sandoz Pharms. Corp., 115 F.T.C. 625, 629–30 (1992). PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 43547 elsewhere on different terms,’’ 15 is a key element in showing the existence of a tie, and can be shown using direct or circumstantial evidence.16 Such coercion need not take the form of a threat to completely withhold the tying product; a tie may also exist where the seller offers the tying product on such terms that, under the circumstances, accepting the tying and tied products together is the only viable economic option for the buyer.17 Finally, harm is particularly likely when the tied markets are concentrated and the tie results in substantial foreclosure in these markets.18 The factual allegations in the complaint support a finding of a violation of Section 1 of the Sherman Act as to the Related Products. Broadcom placed conditions on the supply and service terms associated with the Monopolized Products so as to coerce customers to source Related Products exclusively or nearlyexclusively from Broadcom. The crossconditionality was employed in the negotiation and enforcement of relevant formal agreements and was also present in Broadcom’s ad hoc threats of retaliation. As with the Monopolized Products, Broadcom’s conduct has foreclosed substantial and competitively important portions of the concentrated markets for Related Products, weakening rivals, harming competition, and resulting in reduced customer choice, higher prices, and less innovation in markets for Related Products. IV. The Proposed Order The proposed order seeks to remedy Broadcom’s anticompetitive conduct through three primary prohibitions. A core concept of the order is what is termed a ‘‘majority share requirement,’’ referring to a requirement that a customer purchase more than 50% of the customer’s requirements of a given product come from Broadcom. First, the order prohibits Broadcom from entering into majority share requirements for any Monopolized Product. Second, the order prohibits Broadcom from conditioning access to Monopolized Products on a customer’s agreeing to a majority share requirement for specified Related Products. Third, the order prohibits 15 Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984). 16 See, e.g., Tic-X-Press, 815 F.2d at 1418. 17 See, e.g., United Shoe Mach. Corp. v. United States, 258 U.S. 451, 464 (1922); Viamedia, 951 F.3d at 470–72. 18 See, e.g., Areeda & Hovenkamp, Antitrust Law ¶ 1729; see also Einer Elhauge, Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, 123 Harv. L. Rev. 397, 413 (2009). E:\FR\FM\09AUN1.SGM 09AUN1 lotter on DSK11XQN23PROD with NOTICES1 43548 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices Broadcom from retaliating against a customer that refuses a prohibited majority share requirement or that purchases products from a competitor of Broadcom. Paragraph I of the proposed order defines the key terms used in the order. Paragraph II.A. of the proposed order prohibits Broadcom from imposing a majority share requirement on a customer’s purchases of any Monopolized Product. This provision is designed to end Broadcom’s exclusive dealing practices in the markets for Monopolized Products and to enable the emergence of effective competition in those markets. The prohibition applies to sales of Monopolized Products to OEMs and to U.S. service providers. The proposed order specifically includes prohibitions on Broadcom (1) conditioning the sale of a Monopolized Product on a majority share requirement for that product, (2) conditioning price terms, or non-price terms such as delivery or support terms, for a Monopolized Product on a majority share requirement for that product, (3) conditioning other payments on a majority share requirement for a Monopolized Product, or (4) providing certain types of retroactive rebates for a Monopolized Product in exchange for a majority share requirement. The prohibitions in Paragraph II.A. are qualified by a number of provisos designed to assure that the order does not bar Broadcom from competing on the merits. The first proviso clarifies that the order does not prohibit Broadcom from fulfilling orders from a customer that, over time, chooses to purchase more than 50% of its requirements from Broadcom, provided that such purchases are not pursuant to a majority share requirement prohibited by the order. The second proviso clarifies that a customer’s mere designation of Broadcom as an ‘‘authorized’’ or ‘‘preferred’’ provider does not alone establish a violation of the order. The third proviso clarifies that the order does not prohibit nonretroactive volume discounts. The fourth proviso allows Broadcom, in narrow circumstances, to enter into a majority share requirement in connection with a particular request for proposal (RFP). The proviso provides that Broadcom may agree to a singlesource term in connection with an RFP covering a single device model (or a single device model and certain limited derivatives thereof) if the customer structures the RFP in this way. (In contrast, if a customer chooses to structure an RFP to split component supply for a particular device among multiple suppliers, Broadcom may not VerDate Sep<11>2014 17:26 Aug 06, 2021 Jkt 253001 thwart this by insisting on exclusivity.) The fifth proviso enables Broadcom, in specified conditions, to agree to exclusivity terms with a customer to incent Broadcom to continue producing a product beyond its ordinary-course end of life. Paragraph II.B of the proposed order prohibits Broadcom from using its monopoly power in a Monopolized Product to impose majority share requirements for other Monopolized Products or Related Products. Paragraph II.C of the order prohibits Broadcom from retaliating against a customer for working with a Broadcom rival or for refusing to commit to or maintain a prohibited majority share requirement. Prohibited retaliation includes actual or threatened interference with the sale or delivery of Monopolized Products; withdrawal or modification of, or refusal to extend, relatively favorable price or non-price terms; or refusal to deal with the customer on terms generally available to other similarly situated customers. The proposed order contains standard provisions designed to ensure compliance. Paragraph III requires Broadcom to maintain an antitrust compliance program and to provide notice to customers of the prohibitions contained in the order. Paragraphs IV through VI contain provisions regarding compliance reports, notice of changes in respondent, and access to documents and personnel. The proposed Order’s prohibitions apply to agreements with Service Providers that serve end users in the United States and to agreements with OEMs worldwide, with the exception of agreements for the sale of products intended for use in devices for end users in China. These products are excluded from the prohibitions on majority share requirements in light of distinct competitive conditions applicable to them. The term of the proposed order is ten years. By direction of the Commission. Joel Christie, Acting Secretary. [FR Doc. 2021–16655 Filed 8–6–21; 8:45 am] BILLING CODE 6750–01–P PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Meeting: Advisory Board on Radiation and Worker Health (ABRWH), Subcommittee for Dose Reconstruction Reviews (SDRR), National Institute for Occupational Safety and Health (NIOSH) Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS). ACTION: Notice of meeting. AGENCY: In accordance with the Federal Advisory Committee Act, the CDC announces the following meeting for the Subcommittee for Dose Reconstruction Reviews (SDRR) of the Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board). This meeting is open to the public, but without a public comment period. The public is welcome to submit written comments in advance of the meeting, to the contact person below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcomed to listen to the meeting by joining the audio conference (information below). The audio conference line has 150 ports for callers. DATES: The meeting will be held on September 29, 2021, from 10:30 a.m. to 4:00 p.m., EDT. Written comments must be received on or before September 22, 2021. ADDRESSES: You may submit comments by mail to: Sherri Diana, National Institute for Occupational Safety and Health, 1090 Tusculum Avenue, MS C–34, Cincinnati, Ohio 45226. Meeting Information: Audio Conference Call via FTS Conferencing. The USA toll-free dial-in number is 1–866–659–0537; the pass code is 9933701. SUMMARY: FOR FURTHER INFORMATION CONTACT: Rashaun Roberts, Ph.D., Designated Federal Officer, NIOSH, CDC, 1090 Tusculum Avenue, Mailstop C–24, Cincinnati, Ohio 45226, Telephone: (513) 533–6800; Toll Free 1(800)CDC– INFO; Email: ocas@cdc.gov. SUPPLEMENTARY INFORMATION: Background: The Advisory Board was established under the Energy Employees Occupational Illness Compensation Program Act of 2000 to advise the President on a variety of policy and technical functions required to implement and effectively manage the new compensation program. Key E:\FR\FM\09AUN1.SGM 09AUN1

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[Federal Register Volume 86, Number 150 (Monday, August 9, 2021)]
[Notices]
[Pages 43544-43548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16655]


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FEDERAL TRADE COMMISSION

[File No. 181 0205]


Broadcom Incorporated; Analysis of Agreement Containing Consent 
Order To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement; request for comment.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair methods of competition. 
The attached Analysis of Agreement Containing Consent Order to Aid 
Public Comment describes both the allegations in the complaint and the 
terms of the consent order--embodied in the consent agreement--that 
would settle these allegations.

DATES: Comments must be received on or before September 8, 2021.

ADDRESSES: Interested parties may file comments online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Please write ``Broadcom 
Incorporated; File No. 181 0205'' on your comment, and file your 
comment online at https://www.regulations.gov by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Kathleen Clair (202-326-3435), Bureau 
of Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
at https://

[[Page 43545]]

www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before September 8, 
2021. Write ``Broadcom Incorporated; File No. 181 0205'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the https://www.regulations.gov website.
    Due to the COVID-19 pandemic and the agency's heightened security 
screening, postal mail addressed to the Commission will be subject to 
delay. We strongly encourage you to submit your comments online through 
the https://www.regulations.gov website.
    If you prefer to file your comment on paper, write ``Broadcom 
Incorporated; File No. 181 0205'' on your comment and on the envelope, 
and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible 
website at https://www.regulations.gov, you are solely responsible for 
making sure your comment does not include any sensitive or confidential 
information. In particular, your comment should not include sensitive 
personal information, such as your or anyone else's Social Security 
number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure your comment does not include 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the https://www.regulations.gov website--as legally 
required by FTC Rule 4.9(b)--we cannot redact or remove your comment 
from that website, unless you submit a confidentiality request that 
meets the requirements for such treatment under FTC Rule 4.9(c), and 
the General Counsel grants that request.
    Visit the FTC website at https://www.ftc.gov to read this Notice and 
the news release describing the proposed settlement. The FTC Act and 
other laws that the Commission administers permit the collection of 
public comments to consider and use in this proceeding, as appropriate. 
The Commission will consider all timely and responsive public comments 
that it receives on or before September 8, 2021. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Agreement Containing Consent Order To Aid Public Comment

I. Introduction

    The Federal Trade Commission has accepted, subject to final 
approval, a consent agreement with Broadcom Incorporated. Broadcom 
designs, develops, and sells semiconductor components for a wide range 
of computing and telecommunications applications, including for set-top 
boxes (``STBs'') and broadband devices such as modems. (STBs and 
broadband devices are sometimes collectively referred to as customer 
premises equipment or ``CPE'' or ``CPE devices.'')
    As further described below, the consent agreement contains a 
proposed order addressing allegations in the proposed complaint that 
(1) with regard to certain components used in CPE devices, Broadcom 
unlawfully maintained a monopoly and unreasonably restrained trade 
through exclusive dealing and related conduct, and (2) with regard to 
certain other components used in CPE devices, Broadcom unreasonably 
restrained trade through cross-product conditioning, all in violation 
of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45.
    The proposed order has been placed on the public record for 30 days 
in order to receive comments from interested persons. Comments received 
during this period will become part of the public record. After 30 
days, the Commission will again review the consent agreement and the 
comments received and will decide whether it should withdraw from the 
consent agreement and take appropriate action or make the proposed 
order final.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the complaint, the consent agreement, or the proposed 
order, or to modify their terms in any way. The consent agreement is 
for settlement purposes only and does not constitute an admission by 
Broadcom that the law has been violated as alleged in the complaint or 
that the facts alleged in the complaint, other than jurisdictional 
facts, are true.

II. The Complaint

    The complaint makes the following allegations.

A. Background

    Consumers use STBs and broadband devices in their homes to access 
television and internet services. Service providers such as 
telecommunications and cable companies supply their customers with the 
CPE devices needed to access television and internet services.
    Broadcom makes semiconductor components that are used in CPE 
devices. These include a ``system on a chip'' or ``SOC,'' which is the 
core component directing the functions and features of a CPE device; a 
``front-end'' chip, which converts incoming analog signals to digital 
signals to be read by the SOC; and a ``Wi-Fi'' chip, which enables a 
device to connect to a wireless network. Original equipment 
manufacturers (``OEMs'') incorporate these components into STBs and 
broadband devices, which they typically build to service-provider 
specifications and sell to service providers.
    Broadcom has long been the dominant supplier of (i) SOCs for 
traditional ``broadcast'' STBs,\1\ (ii) SOCs for DSL

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broadband devices, and (iii) SOCs for fiber broadband devices (the 
``Monopolized Products''). In addition, Broadcom is one of few 
significant suppliers of (iv) Wi-Fi chips for CPE devices, (v) front-
end chips for CPE devices, (vi) SOCs for ``streaming'' STBs, and (vii) 
SOCs for cable broadband devices (collectively, the ``Related 
Products,'' and together with the Monopolized Products, the ``Relevant 
Products'').\2\ Broadcom also provides essential ongoing engineering 
and software support services for devices containing its components. 
The markets for Monopolized Products and Related Products are 
concentrated and have significant barriers to entry and expansion.
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    \1\ ``Broadcast'' STBs, sometimes referred to as ``traditional'' 
STBs, access television signals over a broadcast interface (e.g., 
cable, satellite, or fiber), as distinct from ``streaming'' STBs, 
which access only streaming ``internet protocol'' (IP) signals, 
often over an internet connection.
    \2\ The proposed order refers to Monopolized Products and 
Related Products as ``Primary Products'' and ``Secondary Products,'' 
respectively.
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    As early as 2016, Broadcom recognized that it faced competitive 
threats to its monopoly power in Monopolized Products from low-priced, 
nascent rivals. Broadcom understood that nascent rivals could, by 
working with key OEMs and service providers, become stronger, more 
effective competitors. Leading service providers and OEMs were seeking 
to lessen their dependence on Broadcom and to foster competition in CPE 
component markets. These customers sought component-supplier diversity 
for multiple reasons, including to promote competitive pricing and to 
ensure continuity of supply. Another factor threatening Broadcom's 
monopoly power was the ongoing ``cord-cutting'' trend, whereby 
consumers were beginning to move away from traditional ``broadcast'' 
(e.g., cable or satellite) television service and instead to access 
television and other video content via a ``streaming'' internet 
connection. This trend threatened Broadcom because its market position 
was stronger in ``broadcast'' STB SOCs (where it has monopoly power) 
than in ``streaming'' STB SOCs.
    These market conditions presented Broadcom with the incentive and 
opportunity to engage in anticompetitive conduct aimed at maintaining 
its monopoly power in markets for Monopolized Products and to use that 
power to weaken rivals and harm competition in markets for Related 
Products.

B. Broadcom's Anticompetitive Conduct

    Broadcom acted to maintain its monopoly positions and unreasonably 
restrain competition by implementing a wide-ranging exclusivity program 
in which it conditioned customers' access to Monopolized Products and 
support services for these products on commitments to source Relevant 
Products from Broadcom on an exclusive or near-exclusive basis. 
Broadcom implemented this exclusivity program through a series of long-
term contracts entered with both OEMs and service providers, and 
through an accompanying campaign of ad hoc threats and retaliation. As 
a result, sales opportunities for Broadcom's rivals were severely 
restricted.
    Between 2016 and the present, Broadcom negotiated and entered 
agreements with leading OEMs pursuant to which the OEMs agreed, for 
contract and renewal terms spanning multiple years, to purchase, use, 
or bid Broadcom's Relevant Products in STBs and broadband devices on an 
exclusive or near-exclusive basis. In all, Broadcom entered exclusive 
or near- exclusive agreements with at least ten OEMs which collectively 
are responsible for a majority of STB and broadband device sales 
worldwide and even higher percentages of STB and broadband device sales 
in the United States. These OEMs included the largest and most capable 
CPE OEMs--those with the largest market shares, the most extensive 
engineering and design capabilities, and the strongest reputations and 
relationships with downstream service provider customers.
    Broadcom also negotiated and entered a series of agreements with 
major service providers pursuant to which the service providers 
committed, for contract terms spanning multiple years, to use 
Broadcom's Relevant Products on an exclusive or near-exclusive basis 
for their STBs and broadband devices. As with the OEMs targeted by 
Broadcom, these were among the largest, most advanced, and most 
innovative service providers in the world--those best positioned, 
absent their agreements with Broadcom, to enable Broadcom's nascent 
competitors.
    In the course of securing and policing these long-term agreements, 
and also of obtaining exclusive or near-exclusive business from 
customers with which it did not enter formal long-term agreements, 
Broadcom routinely employed coercive leveraging tactics grounded in its 
monopoly power and spanning across product categories. For example, 
Broadcom communicated to OEM customers that disloyalty for even a 
single bid involving a single Relevant Product could mean loss of 
favorable price and non-price terms across numerous product lines, 
including Monopolized Products unrelated to that specific bid. And it 
communicated to service providers that if a service provider did not 
limit its purchases from Broadcom's rivals, Broadcom would implement 
large increases in the fees it charged for support services on devices 
containing Broadcom Monopolized Products already deployed on the 
service providers' networks.

C. Competitive Impact of Broadcom's Conduct

    Broadcom's exclusivity program weakened competitors by foreclosing 
them from substantial portions of the markets for Relevant Products. It 
raised its rivals' costs by forcing rivals competing for a design award 
to be prepared to compensate customers for the penalties--increased 
prices and/or degraded terms--that Broadcom threatened to impose on the 
customer as to other designs and other covered products.
    Broadcom's conduct deprived rivals of opportunities to work with 
key OEMs and service providers, thereby degrading rivals' ability to 
obtain scale and commercial validation, improve their engineering 
capabilities, offer better products to customers, and position 
themselves to win business in the future. As a result, rivals diverted 
resources away from, divested from, and/or considered exiting markets 
for Monopolized Products.
    By foreclosing rivals from substantial sales opportunities other 
than through competition on the merits, Broadcom has maintained its 
monopoly in the markets for Monopolized Products and has unreasonably 
restrained competition in the markets for all Relevant Products, in 
each case harming price and non-price competition, reducing innovation, 
and reducing customer choice.
    No legitimate procompetitive efficiencies justify Broadcom's 
conduct or outweigh the substantial anticompetitive effects thereof. 
Any legitimate objectives of Broadcom's conduct could have been 
achieved through significantly less restrictive means.

III. Legal Analysis

    Section 5 of the FTC Act prohibits unfair methods of competition, 
including agreements in restraint of trade prohibited by Section 1 of 
the Sherman Act and monopolization prohibited by Section 2 of the 
Sherman Act.\3\ Under Section 1, a plaintiff must show (1) concerted 
action that (2) unreasonably restrains competition.\4\ A Section 2 
monopolization offense

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requires proof of ``(1) the possession of monopoly power in the 
relevant market and (2) the willful acquisition or maintenance of that 
power as distinguished from growth or development as a consequence of 
superior product, business acumen or historic accident.'' \5\
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    \3\ 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333 U.S. 683, 
693-94 (1948).
    \4\ 15 U.S.C. 1; see, e.g., Arizona v. Maricopa County Med. 
Soc., 457 U.S. 332, 342-43, (1982).
    \5\ In re McWane, Inc., No. 9351, 2014 WL 556261, at *11 (F.T.C. 
Jan. 30, 2014), aff'd, 783 F.3d 814 (11th Cir. 2015) (quoting United 
States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)); 15 U.S.C. 2.
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A. Monopolization and Restraint of Trade as to Monopolized Products

    An exclusive dealing arrangement is ``an agreement in which a buyer 
agrees to purchase certain goods or services only from a particular 
seller for a certain period of time.'' \6\ Exclusivity need not be 
expressly defined by a written contract, but can also be identified by 
``look[ing] past the terms of the contract to ascertain the 
relationship between the parties and the effect of the agreement in the 
real world.'' \7\ No single contract needs to require 100% 
exclusivity.\8\ The assessment must look beyond ``formalistic 
distinctions'' and focus on ``market realities.'' \9\
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    \6\ ZF Meritor v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).
    \7\ Id. (cleaned up) (noting also that ``de facto exclusive 
dealing claims are cognizable under the antitrust laws.''); see also 
Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 326 (1961) 
(exclusive dealing principles apply not only to contracts that 
expressly require exclusivity, but also to those that have the 
``practical effect'' of inducing a customer to purchase exclusively 
from a dominant seller).
    \8\ ZF Meritor, 696 F.3d at 270; see also Eastman Kodak Co. v. 
Image Tech. Servs., Inc., 504 U.S. 451, 466-67 (1992) (``Legal 
presumptions that rest on formalistic distinctions rather than 
actual market realities are generally disfavored in antitrust 
law.'').
    \9\ Eastman Kodak, 504 U.S. at 466.
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    Exclusive dealing may be unlawful where it enables a firm to 
maintain or enhance monopoly or market power by impairing the ability 
of rivals to grow into effective competitors or by depriving customers 
of the ability to make a meaningful choice.\10\ Of particular relevance 
is whether exclusive dealing has ``foreclose[d] competition in such a 
substantial share of the relevant market so as to adversely affect 
competition.'' \11\ Exclusive dealing may violate Section 1 or Section 
2 of the Sherman Act, but is ``of special concern when imposed by a 
monopolist.'' \12\ Thus, a Section 2 exclusive dealing claim typically 
requires a greater degree of market power, but a lesser degree of 
market foreclosure, than an exclusive dealing claim under Section 
1.\13\
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    \10\ See, e.g., In re McWane, 2014 WL 556261 at *19, 28.
    \11\ ZF Meritor, 696 F.3d at 270; see also McWane, 783 F.3d at 
835.
    \12\ ZF Meritor, 696 F.3d at 271.
    \13\ See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 
69-70 (D.C. Cir. 2001).
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    The factual allegations in the complaint support a finding of 
exclusive dealing as to the Monopolized Products in violation of 
Sections 1 and 2 of the Sherman Act. Broadcom has monopoly power in the 
sale of these products, as demonstrated by both direct and indirect 
evidence, including high shares of markets with significant entry 
barriers. And Broadcom has engaged in exclusive dealing with OEMs and 
service providers through both formal agreements that bar purchases of 
Monopolized Products from a Broadcom rival and ad hoc threats of 
retaliation if a customer purchases from a Broadcom rival. Broadcom's 
exclusive deals foreclosed substantial and competitively important 
portions of the markets for Monopolized Products, weakening rivals, 
harming competition, maintaining Broadcom's monopoly position, and 
resulting in reduced customer choice, higher prices, and less 
innovation in markets for Monopolized Products.

B. Restraint of Trade as to Related Products

    In addition to harming competition in the markets for Monopolized 
Products, Broadcom leveraged its monopoly power in the markets for 
Monopolized Products to foreclose rivals and harm competition in the 
markets for Related Products. As it involves the interaction of two or 
more markets, the conduct is appropriately analyzed with reference to 
tying precedent. To demonstrate tying in violation of Section 1, a 
plaintiff must show (1) separate markets for the tying and tied 
products; (2) defendant's market power in the tying market; (3) the 
existence of a tie, and (4) that the arrangement forecloses a 
substantial volume of interstate commerce in the market for the tied 
product.\14\ Coercion, or ``the seller's exploitation of its control 
over the tying product to force the buyer into the purchase of a tied 
product that the buyer either did not want at all, or might have 
preferred to purchase elsewhere on different terms,'' \15\ is a key 
element in showing the existence of a tie, and can be shown using 
direct or circumstantial evidence.\16\ Such coercion need not take the 
form of a threat to completely withhold the tying product; a tie may 
also exist where the seller offers the tying product on such terms 
that, under the circumstances, accepting the tying and tied products 
together is the only viable economic option for the buyer.\17\ Finally, 
harm is particularly likely when the tied markets are concentrated and 
the tie results in substantial foreclosure in these markets.\18\
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    \14\ See, e.g., Eastman Kodak Co. v. Image Technical Servs., 
Inc., 504 U.S. 451, 461-62 (1992) (quoting N. Pac. R. Co. v. United 
States, 356 U.S. 1, 5-6 (1958) and Fortner Enters., Inc. v. United 
States Steel Corp, 394 U.S. 495, 503 (1969)); United States v. 
Microsoft, 253 F.3d 34, 85, 87 (D.C. Cir. 2001) (``[t]he core 
concern is that tying prevents goods from competing directly for 
consumer choice on their merits''); Tic-X-Press v. Omni Promotions 
Co., 815 F.2d 1407, 1414 (11th Cir. 1987); see also Viamedia, Inc. 
v. Comcast Corp., 951 F.3d 429, 468 (7th Cir. 2020); Inre Sandoz 
Pharms. Corp., 115 F.T.C. 625, 629-30 (1992).
    \15\ Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 
(1984).
    \16\ See, e.g., Tic-X-Press, 815 F.2d at 1418.
    \17\ See, e.g., United Shoe Mach. Corp. v. United States, 258 
U.S. 451, 464 (1922); Viamedia, 951 F.3d at 470-72.
    \18\ See, e.g., Areeda & Hovenkamp, Antitrust Law ] 1729; see 
also Einer Elhauge, Tying, Bundled Discounts, and the Death of the 
Single Monopoly Profit Theory, 123 Harv. L. Rev. 397, 413 (2009).
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    The factual allegations in the complaint support a finding of a 
violation of Section 1 of the Sherman Act as to the Related Products. 
Broadcom placed conditions on the supply and service terms associated 
with the Monopolized Products so as to coerce customers to source 
Related Products exclusively or nearly-exclusively from Broadcom. The 
cross-conditionality was employed in the negotiation and enforcement of 
relevant formal agreements and was also present in Broadcom's ad hoc 
threats of retaliation. As with the Monopolized Products, Broadcom's 
conduct has foreclosed substantial and competitively important portions 
of the concentrated markets for Related Products, weakening rivals, 
harming competition, and resulting in reduced customer choice, higher 
prices, and less innovation in markets for Related Products.

IV. The Proposed Order

    The proposed order seeks to remedy Broadcom's anticompetitive 
conduct through three primary prohibitions. A core concept of the order 
is what is termed a ``majority share requirement,'' referring to a 
requirement that a customer purchase more than 50% of the customer's 
requirements of a given product come from Broadcom. First, the order 
prohibits Broadcom from entering into majority share requirements for 
any Monopolized Product. Second, the order prohibits Broadcom from 
conditioning access to Monopolized Products on a customer's agreeing to 
a majority share requirement for specified Related Products. Third, the 
order prohibits

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Broadcom from retaliating against a customer that refuses a prohibited 
majority share requirement or that purchases products from a competitor 
of Broadcom.
    Paragraph I of the proposed order defines the key terms used in the 
order.
    Paragraph II.A. of the proposed order prohibits Broadcom from 
imposing a majority share requirement on a customer's purchases of any 
Monopolized Product. This provision is designed to end Broadcom's 
exclusive dealing practices in the markets for Monopolized Products and 
to enable the emergence of effective competition in those markets. The 
prohibition applies to sales of Monopolized Products to OEMs and to 
U.S. service providers. The proposed order specifically includes 
prohibitions on Broadcom (1) conditioning the sale of a Monopolized 
Product on a majority share requirement for that product, (2) 
conditioning price terms, or non-price terms such as delivery or 
support terms, for a Monopolized Product on a majority share 
requirement for that product, (3) conditioning other payments on a 
majority share requirement for a Monopolized Product, or (4) providing 
certain types of retroactive rebates for a Monopolized Product in 
exchange for a majority share requirement.
    The prohibitions in Paragraph II.A. are qualified by a number of 
provisos designed to assure that the order does not bar Broadcom from 
competing on the merits. The first proviso clarifies that the order 
does not prohibit Broadcom from fulfilling orders from a customer that, 
over time, chooses to purchase more than 50% of its requirements from 
Broadcom, provided that such purchases are not pursuant to a majority 
share requirement prohibited by the order. The second proviso clarifies 
that a customer's mere designation of Broadcom as an ``authorized'' or 
``preferred'' provider does not alone establish a violation of the 
order. The third proviso clarifies that the order does not prohibit 
non-retroactive volume discounts. The fourth proviso allows Broadcom, 
in narrow circumstances, to enter into a majority share requirement in 
connection with a particular request for proposal (RFP). The proviso 
provides that Broadcom may agree to a single-source term in connection 
with an RFP covering a single device model (or a single device model 
and certain limited derivatives thereof) if the customer structures the 
RFP in this way. (In contrast, if a customer chooses to structure an 
RFP to split component supply for a particular device among multiple 
suppliers, Broadcom may not thwart this by insisting on exclusivity.) 
The fifth proviso enables Broadcom, in specified conditions, to agree 
to exclusivity terms with a customer to incent Broadcom to continue 
producing a product beyond its ordinary-course end of life.
    Paragraph II.B of the proposed order prohibits Broadcom from using 
its monopoly power in a Monopolized Product to impose majority share 
requirements for other Monopolized Products or Related Products.
    Paragraph II.C of the order prohibits Broadcom from retaliating 
against a customer for working with a Broadcom rival or for refusing to 
commit to or maintain a prohibited majority share requirement. 
Prohibited retaliation includes actual or threatened interference with 
the sale or delivery of Monopolized Products; withdrawal or 
modification of, or refusal to extend, relatively favorable price or 
non-price terms; or refusal to deal with the customer on terms 
generally available to other similarly situated customers.
    The proposed order contains standard provisions designed to ensure 
compliance. Paragraph III requires Broadcom to maintain an antitrust 
compliance program and to provide notice to customers of the 
prohibitions contained in the order. Paragraphs IV through VI contain 
provisions regarding compliance reports, notice of changes in 
respondent, and access to documents and personnel.
    The proposed Order's prohibitions apply to agreements with Service 
Providers that serve end users in the United States and to agreements 
with OEMs worldwide, with the exception of agreements for the sale of 
products intended for use in devices for end users in China. These 
products are excluded from the prohibitions on majority share 
requirements in light of distinct competitive conditions applicable to 
them. The term of the proposed order is ten years.

    By direction of the Commission.
Joel Christie,
Acting Secretary.
[FR Doc. 2021-16655 Filed 8-6-21; 8:45 am]
BILLING CODE 6750-01-P