Yesterday, EU Commissioner for Competition Margarete Vestager announced the Commission’s decision to fine Qualcomm for using pricing and contract terms to force a rival out of the market. This fine follows another EU fine issued last year for Qualcomm’s use of exclusivity payments to avoid competition.
If that sounds familiar, it’s because earlier this year, Judge Lucy Koh of the Northern District of California found that Qualcomm had violated U.S. antitrust laws—in part, because of its use of exclusivity payments and contract terms to harm rivals.
There is one competition regulator who’s out of step with the global consensus on Qualcomm’s anti-competitive conduct. That’s the U.S. Department of Justice’s antitrust division—led by Makan Delrahim, who formerly lobbied for Qualcomm. As a result, the Chair of the House Judiciary Committee Antitrust Subcommittee, Rep. David Cicilline, has raised questions about Delrahim’s participation in Qualcomm matters and the ‘neat mapping’ of Delrahim’s publicly stated views to the DOJ’s position in the Qualcomm case.
In a completely unprecedented move, DOJ has filed statements in the FTC’s case arguing against the FTC’s claims that Qualcomm has violated antitrust law. (DOJ’s attempts to interfere with the FTC’s case are not only unprecedented, but also ignore prevailing case law.)
The DOJ filings in the FTC’s case have put DOJ at odds not just with the U.S. FTCU.S. Federal Trade Commission. An independent regulatory agency charged with consumer protection and competition policy, which conducted several influential studies on how patents work in practice. Authored several key studies: 2003’s To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy [PDF] and 2011’s The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition [PDF]. and the EU competition authorities, but with much of the rest of the world—Korea, China, and Taiwan have all fined Qualcomm. Historically, U.S. antitrust regulators have been seen as leaders. The DOJ’s position on standard-essential patents attempts to give a pass to behavior broadly understood to be anti-competitive, risking the U.S.’s leadership role.