Access Remedies in High Technology Antitrust Cases
Files
Description
A number of recent US mergers involving high technology have raised both horizontal and vertical antitrust issues. Purely horizontal mergers that raise antitrust concerns can often be resolved though divestiture or by the licensing of intellectual property. When there are vertical concerns, however, finding a suitable remedy can often be quite difficult. While still relatively rare, antitrust remedies requiring access to networks have been increasingly utilized by US competition authorities in vertical cases. Two prominent examples are the AOL Time Warner merger, in which the US Federal Trade Commission (FTC) required, as a condition for the merger to be consummated, that AOL offer several Internet Service Providers (ISPs) access to its cable broadband network; and US v. Microsoft, in which the US Department of Justice proposed a remedy requiring Microsoft to give Original Equipment Manufacturers (OEMs) the opportunity to replace Microsoft’s Internet browser (Internet Explorer) on the desktop with a competing browser of the OEM’s choice. The two cases were procedurally distinct, the first arising from a merger, and the second from a non-merger investigation. Moreover, the cases were predicated on very different theories. The AOL Time Warner case and the associated remedies requested by the FTC were motivated in part by two theories of vertical foreclosure: the first relating to the cable ‘conduit’ and the second relating to AOL’s control of content. The Microsoft remedy, on the other hand, was motivated substantially by the US Government’s argument that Microsoft had engaged in a series of practices whose goal was to maintain its monopoly in the market for desktop PC operating systems. While not arising from a merger, the debate over whether access remedies were appropriate in the Microsoft case has immediate relevance to the treatment of similar remedies in merger cases. In this chapter I will review both AOL Time Warner and Microsoft, emphasizing access remedies and the theories of liability that motivated them. In doing so, I hope to make clear that, while access remedies are likely to be applicable only in a relatively narrow set of circumstances, such remedies can be especially appropriate in high-technology cases where the goal of restoring competition is unlikely to be achieved by other means. Nonetheless, even in such cases, it is important that the access remedy be directed towards the particulars of the antitrust injury and limited accordingly.
Source Publication
Merger Remedies in American and European Union Competition Law
Source Editors/Authors
François Lévêque, Howard Shelanski
Publication Date
2003
Recommended Citation
Rubinfeld, Daniel L., "Access Remedies in High Technology Antitrust Cases" (2003). Faculty Chapters. 1842.
https://gretchen.law.nyu.edu/fac-chapt/1842
