Separate Statement of Commissioner Mary L. Azcuenaga
Concurring in Part and Dissenting in Part

in Urological Stone Surgeons, Inc.,

Docket C-3791


I agree that an order requiring the respondents to cease and desist from fixing the price of professional lithotripsy services is warranted, but the requirement that the respondents, for ten years, give the Commission 45 days notice before "forming or participating in an integrated joint venture" that sets prices for lithotripsy services is unjustified and unnecessary.(1) The prior notice requirement departs from the Commission's policy adopting a presumption against prior approval and prior notice provisions in merger and joint venture orders.(2) An exception to the policy may be appropriate, if there is a credible risk that prior notice is necessary to prevent repetition of the unlawful conduct. Given the express prohibition in the order of the allegedly unlawful conduct, the potential liability for civil penalties for a violation, and the periodic reports of compliance that may be required under the order, no such necessity appears. I dissent from the prior notice requirement.


Endnotes

(1) The prior notice requirement is inconsistent with the weight of Commission precedent. Similar cases in the health care field typically have not imposed any notice requirements or have required notice within 30 days after certain joint venture activity. See, e.g., Physicians Group, Inc., Docket C-3610 (Aug. 11, 1995); Trauma Associates of North Broward, Inc., Docket C-3541 (Nov. 1, 1994); Southbank IPA, Inc., 114 F.T.C. 783 (1991); Preferred Physicians, Inc., 110 F.T.C. 157 (1988); Medical Staff of Doctors' Hospital of Prince George's County, 110 F.T.C. 476 (1988). But see Montana Associated Physicians, Inc., Docket C-3704 (Jan. 13, 1997) (20-year prior approval); College of Physicians-Surgeons of Puerto Rico, File No. 971-0011 (filed D. Puerto Rico Oct. 2, 1997), Commissioner Azcuenaga concurring in part and dissenting from perpetual prior approval requirement.

(2) Prior Approval Policy Statement (June 1955), reprinted in 4 Trade Reg. Rep. (CCH) 13,241.