Statement of Commissioner Sheila F. Anthony

 

Memorandum of Agreement Between the Federal Trade Commission
and the Antitrust Division of the U.S. Department of Justice
Concerning Clearance Procedures for Investigations

 

On the afternoon of January 17th, in anticipation of the planned execution and announcement of a clearance agreement between the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice, I prepared the following statement. In light of yesterday's events, I withheld my statement because my intent was to comment on an actual agreement rather than a potential one. However, a statement issued today by my fellow Commissioners alludes to my views on this subject. In the interest of sharing my views first-hand, I have decided to release the original statement.

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The efficient division of work between the two federal antitrust enforcement agencies is a perennial challenge. The occasional delays endemic to the clearance process are frustrating for everyone involved. I strongly believe that it is incumbent upon the Commission and the Justice Department's Antitrust Division to cooperate on an ongoing basis to minimize clearance disruptions and delays. To the extent the plan announced today represents such an effort, I applaud it.

However, at least one aspect of the plan concerns me: the absolute ceding of all cable, media, and entertainment matters to the Justice Department. Broadband Internet access and the technologies and content associated with it are likely to become a growth engine for the U.S. economy over the next several years. These "digital age" technologies raise challenging and often novel antitrust issues. The Commission is particularly well suited to deal with these issues for a variety of reasons, including:

• its recent experience in several cases, most notably the AOL/Time Warner merger;
• its ability to study emerging issues through workshops, roundtable discussions, research studies, and the like; and
• its unique ability to utilize an administrative litigation process, which is particularly appropriate for addressing novel issues of first impression.

Recognizing that we cannot predict how certain industries will evolve, the new clearance plan explicitly leaves "convergence" matters open to further sorting out by the two agencies. American consumers may well have been better served if cable/media/entertainment matters had received the same treatment.