(Adds additional FTC comment, analysis)
By Diane Bartz
WASHINGTON, Sept 8 The U.S. Justice Department
issued antitrust guidelines for corporate monopolies on Monday,
but drew a rebuke from members of the Federal Trade Commission
who declined to endorse the report.
The department said the guidelines were aimed at stopping
abuses while avoiding "interfering in the rough and tumble of
At issue is monopoly behavior by dominant companies such as
software giant Microsoft (MSFT.O) and chip maker Intel
(INTC.O), which won huge market shares in their industries and
were then accused of abusing that dominance to stay on top.
"(We) need objective and clear standards ... so that
businesses know where the line is," said Thomas Barnett, the
assistant attorney general for antitrust.
But FTC commissioners Pamela Jones Harbour, Jon Leibowitz
and Thomas Rosch said the report was "chiefly concerned with
firms that enjoy monopoly or near monopoly power, and
prescribes a legal regime that places these firms' interests
ahead of the interests of consumers."
The commissioners also accused the Justice Department of
claiming more consensus than existed on the issue of how far
dominant firms could go in defending their market share.
The Justice Department guidelines are not binding, and
Barnett's successor could decide to ignore them once a new
president is inaugurated next January.
Sen. Herb Kohl, the Wisconsin Democrat who chairs the
Senate antitrust subcommittee, said the report "represents an
abandonment of the command of Section 2 of the Sherman Act,
which prohibits illegal attempts to monopolize or to maintain a
Evan Stewart, an antitrust lawyer with Zuckerman Spaeder
LLP, said the dispute between the FTC and Justice Department
should not be overblown and would not change how he advises
"From a practical standpoint, does that (the report) really
make much of a difference?," he asked. "In the short term,
University of Baltimore law professor Robert Lande almost
dismissed it: "It doesn't matter. It's the end of the
administration. We all know the FTC is more interventionist
than the DOJ."
But Andrew Gavil, who teaches antitrust law at Howard
University, argued the report could not be brushed aside.
"The reason you can't just dismiss them (outgoing
administration officials) is that the courts have been agreeing
with them," said Gavil.
Gavil described the Justice Department antitrust enforcers
as "radical non-interventionists."
"This should not be portrayed as the U.S. versus Europe,"
he said, referring to Europe's reputation for tougher
enforcement. "It's the Department of Justice versus
Elements of the Justice Department guidelines include:
-- A monopoly firm's conduct would be unlawful if the
anticompetitive effects of that behavior are "substantially
disproportionate to any associated procompetitive effects."
-- the department considers a firm to have monopoly power
when it has held at least a two-thirds share of a market for a
significant period and is unlikely to see an erosion in its
-- "The historical hostility of the law" to forcing
customers to buy one product in order to buy another is
unjustified and inconsistent with modern U.S. Supreme Court
-- Exclusive-dealing arrangements which block less than 30
percent of existing customers should not be illegal.
In Brussels, the European Commission issued a discussion
paper in 2005 aimed at writing guidelines covering the same
area. They are still undergoing review.
(Additional reporting by Randall Mikkelsen; Editing by Tim