Access and Information Remedies in High Tech Antitrust

Abstract

As antitrust cases becomes more complex, so does its remedies. Patterns are beginning to emerge in the dizzying array of remedies in recent monopolization and merger cases. Like the cases themselves, the remedies increasingly focus on access to network industries and platform technologies. In an economy increasingly dominated by information and information technology, access is often dependent on seamless interoperability. It is thus not surprising that antitrust remedies increasingly also have focused the disclosure of competitively necessary information as well as the protection of competitively sensitive information obtained from actual or potential competitors. Finally, the more complex the remedy, the greater the need for sophisticated oversight and dispute resolution mechanisms that rely on third-party experts and typically exceed the resources and strengths of the enforcement agencies. While access and information remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements in recent times in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high technology industries at the forefront of antitrust enforcement. When taken together, these recent cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgment that the essential facilities doctrine, and similar access remedies, remain an important and needed part of the antitrust toolkit. This essay will examine the growing use of complex behavioral remedies in both merger and monopolization cases that suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Particularly in settlements, commitments, and consent decrees, the Antitrust Division, Federal Trade Commission, and the European Commission have permitted mergers and unilateral conduct by dominant firms conditioned upon complex behavioral commitments include: 1) Continued obligations to supply or license competitors and customers with vital inputs on fair and non-discriminatory terms; 2) Continued obligations to allow competitors access to networks on fair and non-discriminatory terms; 3) The disclosure of intellectual property, know how, and technical information necessary to make these access obligations meaningful; 4) Creation of firewalls and other devices to prevent the dominant or merging firms from misusing competitively sensitive information obtained through their ongoing relationships with their competitors and customers; and 5) The use of special masters, technical committees, monitors, regulatory bodies, and the creation of third-party alternative dispute resolution procedures to handle the inevitable disputes that will arise without requiring the agencies or courts to act as long-term regulators of the industries and firms in question. I use examples such as the Microsoft and Intel litigation in the U.S. and the EU, as well as more recent U.S. merger consent decrees involving Google-ITA, Comcast-Universal, and Live Nation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.