|Free Trade Area of the Americas - FTAA||
Report on Developments and Enforcement of Competition Policy and Laws in the Western Hemisphere
Submitted by the OAS Trade Unit to the FTAA Working Group on Competition Policies
United States: Report on Developments and Enforcement of Competition Policy and Laws (October 1, 1995 Through September 30, 1996) (Continued)
E. Business Reviews Conducted by the Department of Justice
56. From October 1, 1995 to September 30, 1996, the Antitrust Division responded to 24 requests for review of written business proposals. In 22 of the responding letters, the Division stated that it would not challenge the proposed conduct. The approved business practices include nine nonexclusive physician networks, three medical data and clinic networks, and three health care managing networks. In addition, the Division approved practices including: joint proposals to truck and rail carriers by transportation companies; advance pricing negotiation by a credit union representative for car sales; and the development of a national marketing program for independent automotive damage appraisers. All of these business review letters can be found at 6 Trade Reg. Rep. (CCH) ? 44,096; those of particular interest are described below.
57. On February 22, 1996, the Division approved the proposal by Southwest Power Pool, Inc. to create a computerized trading system that would allow real-time trading of electric power on a next-hour basis. The Division stated that the proposal will not likely foster price collusion and an increased efficiency could foster price rivalry to the benefit of the consumer.
58. On May 13, 1996, the Division stated that it would not challenge a proposal by three Texas oil-well-drilling suppliers -- Baker Hughes Inteq and M-1 Drilling Fluids of Houston and Dresser Industries Inc. of Dallas -- to buy jointly Chinese produced barite, a chemical used in the oil-drilling process. The Division stated its belief that the proposed joint venture will not likely have an anticompetitive effect since Chinese barite purchased by the three firms accounts for less than 35 percent of world barite production.
59. On March 1, 1996, the Division announced that it would not approve a proposal by a group of southern New Jersey pediatricians to form a physician network. The proposed network would have been formed by pediatricians to negotiate and contract with managed care plans to provide basic health care for children. The Division stated that the network would comprise approximately 50 -75 percent of the primary-care pediatricians in several local markets for pediatric services and could likely be used to raise prices to consumers without countervailing procompetitive benefits.
60. On March 8, 1996, the Division advised five groups of anesthesiologists based in Orange County, California, that it would not approve their proposal to deal jointly through a single price-setting unit with managed health care plans. The Division explained in a business review letter that the proposal would have reduced the number of anesthesia groups available to serve local hospitals in Orange County from six to two and would have likely resulted in higher health care costs. The Division also concluded that new groups were unlikely to enter the area to offset the substantial reduction in competition.
A. Department of Justice and FTC Merger Statistics
61. The Department and the Commission maintain statistics respecting the mergers and acquisitions reported under the Hart-Scott-Rodino Act (HSR). The HSR Premerger Notification Program was enacted to provide the enforcement agencies with a meaningful opportunity to review proposed transactions and to take enforcement action, if appropriate, to prevent consummation of transactions that violate the antitrust laws. Only those mergers meeting certain size or other criteria are required to be reported under the Act.
62. During FY96, 3,087 proposed mergers and acquisitions were submitted for review under the notification and filing requirements of the HSR Act. This was a record number -- a nine percent increase over the number reported in the previous fiscal year. The purchase price of 836 of these transactions exceeded $100 million. More than half involved acquisitions of only voting securities. A wide variety of industries were involved including defense, medical equipment, industrial gases, supermarkets, pharmaceuticals, computer software systems, chemicals, cable television and funeral homes.
1) DOJ Review of Mergers
63. The Division initiated 237 merger investigations, 186 HSR and 49 non-HSR. Of the 186 HSR investigations, 102 involved second requests and/or civil investigative demands ("CIDs"). Of the 49 non-HSR merger investigations, 15 involved the issuance of CIDs.
2) FTC Review of Mergers
64. Based on its review of premerger notification reports, the FTC investigated 36 transactions with second requests for information.
3) Enforcement of Premerger Notification Rules
65. The Commission and the Department actively have enforced the filing requirements of the Hart-Scott-Rodino (HSR) Act by bringing cases in federal court to obtain civil penalties. In FY 96, four civil penalty actions were brought. In addition, a "hold separate" agreement was negotiated in a pending investigation.
66. In February, l996, Sara Lee Corporation agreed to pay a record $3.1 million civil penalty for deliberately failing to pre-notify its acquisition of Reckitt and Coleman's shoe care products assets as required by the HSR Act. Sara Lee Corporation, File No. 921-0023, 5 Trade Reg. Rep. (CCH) ¶23,972.
67. Automatic Data Processing agreed in March, l996 to pay $2.97 million for failing to include key competitive documents in a HSR filing in connection with its April, l995 acquisition of AutoInfo, Inc.'s assets. (The documents ultimately were submitted.) Automatic Data Processing, Inc., File No. 951-0113, 5 Trade Reg. Rep. (CCH) ¶24,006.
68. Other civil penalty actions are: Foodmaker, Inc, File No. 941-0056, 5 Trade Reg. Rep. (CCH) ¶ 24,087 ($1.45 million, knowing failure to make HSR filing); and Titan Wheel International, Inc., File No. 941-0110, 5 Trade Reg. Rep. (CCH) ¶24,026 ($130,000, failure to observe HSR waiting period).
69. In a pending investigation of a consummated transaction, the Commission in September, l996 negotiated a "hold separate" agreement with Mahle GmbH, a German firm, to prevent it from exercising any control over its competitor, Metal Leve S.A., a Brazilian firm in which Mahle acquired a controlling interest without first making the required HSR filings. Civil penalties are under consideration. Mahle GmbH, File No. 961-0085, 5 Trade Reg. Rep. (CCH) ¶24,096.
B. Significant Merger Cases
1) DOJ Merger Challenges or Cases
70. On December 12, 1995, the Division and the State of Texas filed a joint complaint and proposed consent decree in connection with the proposed merger of Kimberly Clark Corporation and Scott Paper Co. The complaint alleged that a combination of the companies as proposed would control nearly 60 percent of sales of facial tissue and more than 55 percent of sales of baby wipes, allowing them to increase prices to consumers and substantially reduce competition. Under the consent decree, the companies are required to divest Scott's baby wipes and facial tissue business. See 1996-1 Trade Cases ¶ 71,405 for the text of the final consent decree.
71. On March 29, 1996, the Division filed a civil antitrust suit and proposed consent decree in connection with the proposed merger of Georgia-Pacific Corporation, one of the nation?s largest gypsum drywall producers, and Domtar Inc., a Canadian corporation. The complaint alleged that the merger would lessen competition for drywall gypsum, also known as wallboard or sheetrock, facilitate coordinated pricing activity and raise prices to consumers in the northeastern United States. The consent decree requires Georgia-Pacific to divest plants in Wilmington, Delaware and Buchanan, New York. See 1996-2 Trade Cases (CCH) ¶ 71,560 for the text of the final consent decree.
72. On June 11, 1996, the Division filed a civil antitrust suit in the U.S. District Court in Washington to block American Skiing Company's proposal to purchase S-K-I Ltd, challenging that the deal would raise prices and eliminate discounts of skiing packages. At the same time, the Division filed a proposed consent decree that would require American Skiing to sell its New Hampshire ski resorts at Waterville Valley and Mount Cranmore to preserve competition. See 1996-2 Trade Cases (CCH) ¶ 71,627 for the text of the final consent decree.
73. On June 19, 1996, the Division and Attorneys General from seven states challenged the proposed merger of two of the nation's largest legal publishers. In a joint antitrust suit filed in the U.S. District Court in Washington, the Division and Attorneys General from California, Connecticut, Illinois, Massachusetts, New York, Washington and Wisconsin alleged that the proposed merger of Thomson Corp. and West Publishing Co. would reduce competition substantially in nine markets for enhanced primary law, and in a number of markets for secondary legal sources such as treatises and legal guides, and in the online computer legal research market. Under the proposed consent decree, Thomson is required to divest more than 50 products. See 7 Trade Rep. Reg. (CCH) ¶ 50,803, Case No. 4217 for the text of the proposed consent decree.
74. On August 5, 1996, the Division filed a civil antitrust suit in the U.S. District Court in Cincinnati to block the proposed merger of Jacor Communications Inc. and Citicasters Inc., two of the nation?s largest radio station owners. The Division alleged that a combination of the two companies would control more than 50 percent of sales of radio advertising time in Cincinnati, and could enable the companies to increase prices to advertisers and substantially lessen competition. Under a consent decree filed at the same time, Jacor and Citicasters agreed to divest WKRQ-FM, a leading Cincinnati contemporary music station, to an independent buyer. See 7 Trade Rep. Reg. (CCH) ¶ 50,807, Case No. 4225 for the text of the final consent decree.
75. On September 13, 1996, in a joint settlement, the Texas Attorney General?s office and the Division approved a deal between the two largest tortilla flour manufactures, after the companies agreed to divest a flour mill in the Texas panhandle simultaneously with the closing of the transaction. As a result of the restructuring, Archer Daniels Midland Co. was permitted to acquire 22 percent of Gruma S.A. de C.V., a Mexican company. The two companies will also be able to form a partnership to combine their U.S. masa flour milling operations.
2) Merger Cases Brought by the FTC
a. Preliminary Injunctions Authorized
76. In December, 1995, the Commission sought a federal court order to enjoin, pending the outcome of an administrative trial, a proposed acquisition by Questar Corp. of certain pipeline assets of Tenneco, Inc that allegedly would have allowed Questar to reassert a monopoly over the transmission of natural gas to industrial customers in the Salt Lake City, Utah area. The defendants abandoned the transaction after the complaint was filed. The court then dismissed the complaint without prejudice. Questar Corp., File No. 961-0001, 5 Trade Reg. Rep.(CCH) ¶23,949.
77. In January, 1996, the Commission sought a federal court order to enjoin, pending the outcome of an administrative trial, a proposed transaction that would combine the two leading general acute care hospitals, Butterworth Health Corp. and Blodgett Memorial Medical Center, in Grand Rapids, Michigan. Following a hearing, a district court judge denied the Commission's request for preliminary injunctive relief. The Commission appealed and was granted an expedited hearing before the U.S. Court of Appeals for the Sixth Circuit. Butterworth Hospital, File No. 951-0126, Case No. 1:96-CV-49, 7 Trade Reg. Rep. (CCH) ¶71,571.
78. In April, 1996, the Commission was prepared to seek a federal court order to enjoin, pending the outcome of an administrative trial, a proposed acquisition of Revco D.S. Inc., by Rite Aid Corp., which would merge the two largest retail drug chains in the U.S. and allegedly reduce substantially competition for prescription drugs sold in retail pharmacy outlets in numerous areas. The parties abandoned the transaction just before the complaint was filed. Rite-Aid Corp., File No. 951-0120, 5 Trade Reg. Rep. (CCH) ¶24,041.
b. Commission Administrative Decisions
79. In February, 1996, the Commission gave final approval to a consent agreement with The Upjohn Co., and Pharmacia Aktiebolag, a Swedish firm, regarding their $13.9 billion merger which raised antitrust concerns in an innovation market. The consent order, which requires divestiture of certain Pharmacia assets to a Commission-approved buyer, is designed to preserve competition in the research and development of drugs for treating colorectal cancer and to assure lower prices when those drugs reach the market. Upjohn Co., Docket No. C-3638, 5 Trade Reg. Rep. (CCH) ¶23,914.
80. In April, 1996, the Commission issued a final consent order settling charges that the acquisition by the Scottish firm Devro International PLC (through its U.S. subsidiary), of Teepak International, Inc., by combining the nation's top two producers of collagen sausage casings, likely would substantially reduce competition and result in higher prices in this market. The order requires Devro to divest the assets it uses to produce such casings in the U.S. to a Commission-approved buyer. Devro International plc, Docket No. C-3650, 5 Trade Reg. Rep. (CCH) ¶23,940.
81. A final consent order was issued in May, l996 settling charges that Litton Industries, Inc.'s acquisition of PRC Inc. would give it access to competitively sensitive, non-public information about the only other Aegis destroyer producer, thereby giving Litton a competitive advantage and result in increased prices for the U.S. Navy's Aegis destroyer program. The consent order requires Litton to divest PRC's $40 million systems engineering and technical assistance contract for the Aegis program and represents the first divestiture order in a defense industry market. Litton Industries, Inc., Docket No. C-3656, 5 Trade Reg. Rep. (CCH) ¶23,983.
82. The Commission in June, l996 gave final approval to a consent agreement with Compagnie de Saint-Gobain and its U.S. subsidiary, Saint-Gobain/Norton to settle charges that its acquisition of The Carborundum Company from British Petroleum Company likely would lead to monopolies or near-monopolies in the markets for three products used in industrial furnaces and home appliances (fused cast refractories, silicon carbide refractories, and hot surface gas igniters). The consent order requires Saint-Gobain to divest businesses and associated assets in each of these markets. Compagnie de Saint-Gobain, Docket No. C-3673. 5 Trade Reg. Rep. (CCH) ¶23,985.
83. Lockheed Martin Corp. settled FTC charges that its $9.1 billion acquisition of the Loral Corporation would reduce competition in the markets for air traffic control systems, commercial low earth orbit satellites, commercial geosynchronous earth orbit satellites, military tactical fighter aircraft and unmanned aerial vehicles. The final order, issued in September, l996, among other things, requires divestiture of an air traffic control system-related contract; limits Lockheed Martin's ownership of Loral Space (a newly-created company consisting of Loral's space and telecommunications businesses); prohibits Lockheed Martin from providing certain technical services or information regarding satellites to Loral Space; and requires firewalls to limit information flows about competitors' tactical fighter aircraft and unmanned aerial vehicles. Lockheed Martin Corp., Docket No. C-3685, 5 Trade Reg. Rep. (CCH) ¶ 24,126.
84. The Commission in July, 1996 accepted, subject to public comment, a proposed consent agreement with Fresenius AG and its U.S. subsidiary to divest its Lewisberry, Pennsylvania hemodialysis (HD) concentrate plant to Di-Chem, Inc., to resolve antitrust concerns stemming from Fresenius' proposed acquisition of National Medical Care, Inc. (NMC). According to the FTC complaint, Fresenius' proposed acquisition of NMC would combine two significant producers of HD concentrate in the U.S. in a highly concentrated market, thereby increasing the likelihood of coordinated interaction about HD concentrate producers and likely leading to higher prices for the product. Fresenius AG, File No. 961-0053, 5 Trade Reg. Rep. (CCH) ¶ 24,077.
85. In September, l996, the Commission accepted, subject to public comment, a proposed consent agreement with Time Warner Inc. that restructured its $7.5 billion acquisition of Turner Broadcasting System, Inc. to settle charges that the merger would restrict competition in cable television programming and distribution. The Commission complaint alleged that the acquisition, along with related agreements, would allow Time Warner to raise unilaterally consumer prices for cable television and to limit programming choices. The proposed order would require the parties to make a number of structural changes and to abide by certain restrictions designed to break down the entry barriers create by the deal. Time Warner Inc., File No. 961-0004, 5 Trade Reg. Rep. (CCH) ¶24,104.
86. Other consent orders, final or proposed, are the following: Loewen Group International, Inc., Docket No. C-3677 (final) (funeral homes), 5 Trade Reg. Rep. (CCH) ¶24,027; Loewen Group Inc., Docket No. C-3678 (final) (funeral homes), 5 Trade Reg. Rep. (CCH) ¶24,027; Service Corp. International, Inc., Docket No. C-3646 (final) (funeral homes, crematories), 5 Trade Reg. Rep. (CCH) ¶ 24,018; Stop and Shop Companies Inc., Docket No. C-3649 (final) (grocery stores), 5 Trade Reg. Rep. (CCH) ¶24,018; Johnson & Johnson Inc., Docket No. C-3645 (final) (cranial shunts), 5 Trade Reg. Rep. (CCH) ¶23,994; Praxair Inc., Docket No. C-3648 (final) (industrial gases), 5 Trade Reg. Rep. (CCH) ¶23,952; Illinois Tool Works, Inc., Docket No. C-3651 (final) (industrial power sources and engine drives), 5 Trade Reg. Rep. (CCH) ¶23,968; Hughes Danbury Optical Systems, Inc., Docket No. C-3652 (final) (deformable mirrors), 5 Trade Reg. Rep. (CCH) ¶23,976; Raytheon Co., Docket No. C-3681 (final) (submarine satellite communications equipment), 5 Trade Reg. Rep. (CCH) ¶24,051; Koninklijke Ahold N.V., Docket No. C-3687 (final) (grocery markets), 5 Trade Reg. Rep. (CCH) ¶ 24,071; NGC Corp., File No. 961-0046 (proposed) (natural gas liquids fractionation), 5 Trade Reg. Rep. (CCH) ¶24,093; Castle Harlan Partners, File No. 961-0067 (proposed) (class rings), 5 Trade Reg. Rep. (CCH) ¶24,113; and Wesley-Jessen Corp., File No. 961-0060 (proposed) (opaque contact lenses), 5 Trade Reg. Rep. (CCH) ¶24,117.
A. Regulatory Policies
1) DOJ Activities with Respect to Federal and State Regulatory Matters
87. The Division participated actively in regulatory proceedings in order to promote competition. During FY96, the Division filed comments in:
88. In FY96, the Division reviewed three applications for new Export Trade Certificates submitted under the Export Trading Company Act and its implementing regulations and concurred in the issuance of two new certificates. (One application was withdrawn.) The goods covered by the certificates included leaf-tobacco and milled rice.
2) FTC Activities with Respect to Regulatory and State Legislative Matters
89. The goal of the Commission's advocacy activities is to reduce harm to consumers and competition by informing appropriate governmental and self-regulatory bodies about the potential effects, both positive and negative, of proposed legislation, rules or industry guides or codes. The following are examples of some of these activities in FY96.
a. Federal Agencies
90. FTC staff commented on Federal Communications Commission (FCC) policies for awarding licenses for local multipoint distribution service (LMDS) to local phone or cable companies. Staff said that: i) local phone or cable companies that acquired a LMDS license for the same geographic area in which they offer their current service, given enough market power, could either warehouse the LMDS license to forestall a third party from coming in and competing, or could raise the price of both services they offer; and ii) until effective competition is present in these markets, the acquisition of LMDS spectrum licenses by competing local exchange carriers and cable operators presents potentially significant risks.
91. FTC staff filed comments with the Copyright Office on a recommendation to extend the cable compulsory license to Open Video Systems (OVS), and place copyright liability on the firm providing the programming on the OVS. Staff said that applying the cable compulsory license to OVS would lead to an allocation of resources that better reflected the relative costs of different video distribution methods, and that it would reduce that OVS's cost of acquiring programming and make its acquisition costs comparable to that of other distribution technologies.
92. FTC staff supported proposed legislation in Tennessee that would permit veterinarians to practice as employees of non-veterinarians under certain conditions. Allowing new business formats, which Tennessee's law now prohibits, could enhance competition and afford consumers a wider selection of services at lower costs.
93. FTC and DOJ staff opposed the Virginia State Bar's proposal to prevent non-lawyers and title company attorneys from handling closings of real estate transactions and refinancings. They argued that the proposal would increase costs to consumers who would not otherwise hire an attorney and would lead to higher prices for lawyers' settlement services by eliminating competition from lay settlement services.
94. FTC staff opposed a proposed rule by the Washington legislature requiring candidates for Certified Public Accountant status to earn at least 150 semester hours of undergraduate academic credit since this would raise the educational entry requirements for CPA licensure, likely resulting in increased costs of entry and higher prices for CPAs.
B. Department of Justice Trade Policy Activities
95. The Division is extensively involved in interagency discussions and decision-making with respect to the formulation and implementation of U.S. international trade policy. The Division participates in interagency trade policy discussions chaired by the Office of the U.S. Trade Representative and is a participant in the trade policy activities of the National Economic Council (NEC), a cabinet-level advisory group. The Department provides antitrust and other legal advice to U.S. trade negotiators. Both DOJ and FTC participate in bilateral and multilateral discussions and work projects to improve cooperation in the enforcement of competition laws.
96. The Division and FTC participate in a number of negotiations and working groups related to regional trade agreements. The Division chairs the U.S. delegation to a working group on trade and competition under the North American Free Trade Agreement, and participates with the Office of the U.S. Trade Representative, the Federal Trade Commission, and State and Commerce Departments in competition policy working groups associated with the Free Trade Area of the Americas and Asia-Pacific Economic Cooperation. The antitrust agencies will also play an important role in the working group to be established in 1997 by the World Trade Organization to study issues relating to the interaction between trade and competition policy.
97. The Division represents the Department on the Committee on Foreign Investment in the United States (CFIUS), an interagency group chaired by Treasury that advises the President on enforcement of the Exon-Florio provision, a 1988 statute that permits the President to block or suspend foreign acquisitions of U.S. assets that "threaten to impair the national security."
98. The Department and the FTC have an extensive program to provide technical assistance in antitrust development to countries with emerging market economies. In addition to advancing the adoption of competition policies that incorporate sound economic principles and effective enforcement mechanisms, these programs create long-term cooperative relationships with policy and enforcement officials in the countries involved.
99. The Division co-chairs (with the Office of the U.S. Trade Representative) the Deregulation and Competition Policy portion of the U.S.-Japanese Framework discussions. In these discussions, the United States has urged the Japanese government to strengthen its enforcement of Japan?s antimonopoly law, to make its administrative procedures fair and open, and to accelerate an effective program of deregulation to open markets to competition.
A. Antitrust Division Economic Analysis Group Discussion Papers
100. The Division issued nine Economic Analysis Group Discussion Papers during the period October 1, 1995 though September 30, 1996.
B. Commission Economic Reports, Economic Working Papers and Miscellaneous Studies
101. The following may be obtained from the Federal Trade Commission, Division of International Antitrust, 6th and Pennsylvania Ave., N.W., Washington, D.C. 20580.
1) Economic Reports
1. The Salt Producers Discount Practices Before and After the Robinson-Patman Act and the FTC's Challenge to Them: The Morton and International Salt Cases, John L. Peterman, October 1995.
2) Working Papers
1. The Political Economy of Federal Trade Commission Administrative Decision Making in Merger Enforcement, (WP#210), Malcolm B. Coate and Andrew N. Kleit, November 1995.