Notice2021-16655
Broadcom Incorporated; Analysis of Agreement Containing Consent Order To Aid Public Comment
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Published
August 9, 2021
Issuing agencies
Federal Trade Commission
Abstract
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Agreement Containing Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order--embodied in the consent agreement--that would settle these allegations.
Full Text
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<title>Federal Register, Volume 86 Issue 150 (Monday, August 9, 2021)</title>
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[Federal Register Volume 86, Number 150 (Monday, August 9, 2021)]
[Notices]
[Pages 43544-43548]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16655]
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FEDERAL TRADE COMMISSION
[File No. 181 0205]
Broadcom Incorporated; Analysis of Agreement Containing Consent
Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair methods of competition.
The attached Analysis of Agreement Containing Consent Order to Aid
Public Comment describes both the allegations in the complaint and the
terms of the consent order--embodied in the consent agreement--that
would settle these allegations.
DATES: Comments must be received on or before September 8, 2021.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write ``Broadcom
Incorporated; File No. 181 0205'' on your comment, and file your
comment online at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by following the
instructions on the web-based form. If you prefer to file your comment
on paper, mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Kathleen Clair (202-326-3435), Bureau
of Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis to Aid Public Comment describes the terms of the
consent agreement and the allegations in the complaint. An electronic
copy of the full text of the consent agreement package can be obtained
at https://
[[Page 43545]]
www.ftc.gov/news-events/commission-actions.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before September 8,
2021. Write ``Broadcom Incorporated; File No. 181 0205'' on your
comment. Your comment--including your name and your state--will be
placed on the public record of this proceeding, including, to the
extent practicable, on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
Due to the COVID-19 pandemic and the agency's heightened security
screening, postal mail addressed to the Commission will be subject to
delay. We strongly encourage you to submit your comments online through
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
If you prefer to file your comment on paper, write ``Broadcom
Incorporated; File No. 181 0205'' on your comment and on the envelope,
and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite
CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024. If possible, submit your paper comment to the
Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible
website at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, you are solely responsible for
making sure your comment does not include any sensitive or confidential
information. In particular, your comment should not include sensitive
personal information, such as your or anyone else's Social Security
number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure your comment does not include
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request, and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website--as legally
required by FTC Rule 4.9(b)--we cannot redact or remove your comment
from that website, unless you submit a confidentiality request that
meets the requirements for such treatment under FTC Rule 4.9(c), and
the General Counsel grants that request.
Visit the FTC website at <a href="http://www.ftc.gov">http://www.ftc.gov</a> to read this Notice and
the news release describing the proposed settlement. The FTC Act and
other laws that the Commission administers permit the collection of
public comments to consider and use in this proceeding, as appropriate.
The Commission will consider all timely and responsive public comments
that it receives on or before September 8, 2021. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see <a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission has accepted, subject to final
approval, a consent agreement with Broadcom Incorporated. Broadcom
designs, develops, and sells semiconductor components for a wide range
of computing and telecommunications applications, including for set-top
boxes (``STBs'') and broadband devices such as modems. (STBs and
broadband devices are sometimes collectively referred to as customer
premises equipment or ``CPE'' or ``CPE devices.'')
As further described below, the consent agreement contains a
proposed order addressing allegations in the proposed complaint that
(1) with regard to certain components used in CPE devices, Broadcom
unlawfully maintained a monopoly and unreasonably restrained trade
through exclusive dealing and related conduct, and (2) with regard to
certain other components used in CPE devices, Broadcom unreasonably
restrained trade through cross-product conditioning, all in violation
of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45.
The proposed order has been placed on the public record for 30 days
in order to receive comments from interested persons. Comments received
during this period will become part of the public record. After 30
days, the Commission will again review the consent agreement and the
comments received and will decide whether it should withdraw from the
consent agreement and take appropriate action or make the proposed
order final.
The purpose of this analysis is to facilitate public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint, the consent agreement, or the proposed
order, or to modify their terms in any way. The consent agreement is
for settlement purposes only and does not constitute an admission by
Broadcom that the law has been violated as alleged in the complaint or
that the facts alleged in the complaint, other than jurisdictional
facts, are true.
II. The Complaint
The complaint makes the following allegations.
A. Background
Consumers use STBs and broadband devices in their homes to access
television and internet services. Service providers such as
telecommunications and cable companies supply their customers with the
CPE devices needed to access television and internet services.
Broadcom makes semiconductor components that are used in CPE
devices. These include a ``system on a chip'' or ``SOC,'' which is the
core component directing the functions and features of a CPE device; a
``front-end'' chip, which converts incoming analog signals to digital
signals to be read by the SOC; and a ``Wi-Fi'' chip, which enables a
device to connect to a wireless network. Original equipment
manufacturers (``OEMs'') incorporate these components into STBs and
broadband devices, which they typically build to service-provider
specifications and sell to service providers.
Broadcom has long been the dominant supplier of (i) SOCs for
traditional ``broadcast'' STBs,\1\ (ii) SOCs for DSL
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broadband devices, and (iii) SOCs for fiber broadband devices (the
``Monopolized Products''). In addition, Broadcom is one of few
significant suppliers of (iv) Wi-Fi chips for CPE devices, (v) front-
end chips for CPE devices, (vi) SOCs for ``streaming'' STBs, and (vii)
SOCs for cable broadband devices (collectively, the ``Related
Products,'' and together with the Monopolized Products, the ``Relevant
Products'').\2\ Broadcom also provides essential ongoing engineering
and software support services for devices containing its components.
The markets for Monopolized Products and Related Products are
concentrated and have significant barriers to entry and expansion.
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\1\ ``Broadcast'' STBs, sometimes referred to as ``traditional''
STBs, access television signals over a broadcast interface (e.g.,
cable, satellite, or fiber), as distinct from ``streaming'' STBs,
which access only streaming ``internet protocol'' (IP) signals,
often over an internet connection.
\2\ The proposed order refers to Monopolized Products and
Related Products as ``Primary Products'' and ``Secondary Products,''
respectively.
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As early as 2016, Broadcom recognized that it faced competitive
threats to its monopoly power in Monopolized Products from low-priced,
nascent rivals. Broadcom understood that nascent rivals could, by
working with key OEMs and service providers, become stronger, more
effective competitors. Leading service providers and OEMs were seeking
to lessen their dependence on Broadcom and to foster competition in CPE
component markets. These customers sought component-supplier diversity
for multiple reasons, including to promote competitive pricing and to
ensure continuity of supply. Another factor threatening Broadcom's
monopoly power was the ongoing ``cord-cutting'' trend, whereby
consumers were beginning to move away from traditional ``broadcast''
(e.g., cable or satellite) television service and instead to access
television and other video content via a ``streaming'' internet
connection. This trend threatened Broadcom because its market position
was stronger in ``broadcast'' STB SOCs (where it has monopoly power)
than in ``streaming'' STB SOCs.
These market conditions presented Broadcom with the incentive and
opportunity to engage in anticompetitive conduct aimed at maintaining
its monopoly power in markets for Monopolized Products and to use that
power to weaken rivals and harm competition in markets for Related
Products.
B. Broadcom's Anticompetitive Conduct
Broadcom acted to maintain its monopoly positions and unreasonably
restrain competition by implementing a wide-ranging exclusivity program
in which it conditioned customers' access to Monopolized Products and
support services for these products on commitments to source Relevant
Products from Broadcom on an exclusive or near-exclusive basis.
Broadcom implemented this exclusivity program through a series of long-
term contracts entered with both OEMs and service providers, and
through an accompanying campaign of ad hoc threats and retaliation. As
a result, sales opportunities for Broadcom's rivals were severely
restricted.
Between 2016 and the present, Broadcom negotiated and entered
agreements with leading OEMs pursuant to which the OEMs agreed, for
contract and renewal terms spanning multiple years, to purchase, use,
or bid Broadcom's Relevant Products in STBs and broadband devices on an
exclusive or near-exclusive basis. In all, Broadcom entered exclusive
or near- exclusive agreements with at least ten OEMs which collectively
are responsible for a majority of STB and broadband device sales
worldwide and even higher percentages of STB and broadband device sales
in the United States. These OEMs included the largest and most capable
CPE OEMs--those with the largest market shares, the most extensive
engineering and design capabilities, and the strongest reputations and
relationships with downstream service provider customers.
Broadcom also negotiated and entered a series of agreements with
major service providers pursuant to which the service providers
committed, for contract terms spanning multiple years, to use
Broadcom's Relevant Products on an exclusive or near-exclusive basis
for their STBs and broadband devices. As with the OEMs targeted by
Broadcom, these were among the largest, most advanced, and most
innovative service providers in the world--those best positioned,
absent their agreements with Broadcom, to enable Broadcom's nascent
competitors.
In the course of securing and policing these long-term agreements,
and also of obtaining exclusive or near-exclusive business from
customers with which it did not enter formal long-term agreements,
Broadcom routinely employed coercive leveraging tactics grounded in its
monopoly power and spanning across product categories. For example,
Broadcom communicated to OEM customers that disloyalty for even a
single bid involving a single Relevant Product could mean loss of
favorable price and non-price terms across numerous product lines,
including Monopolized Products unrelated to that specific bid. And it
communicated to service providers that if a service provider did not
limit its purchases from Broadcom's rivals, Broadcom would implement
large increases in the fees it charged for support services on devices
containing Broadcom Monopolized Products already deployed on the
service providers' networks.
C. Competitive Impact of Broadcom's Conduct
Broadcom's exclusivity program weakened competitors by foreclosing
them from substantial portions of the markets for Relevant Products. It
raised its rivals' costs by forcing rivals competing for a design award
to be prepared to compensate customers for the penalties--increased
prices and/or degraded terms--that Broadcom threatened to impose on the
customer as to other designs and other covered products.
Broadcom's conduct deprived rivals of opportunities to work with
key OEMs and service providers, thereby degrading rivals' ability to
obtain scale and commercial validation, improve their engineering
capabilities, offer better products to customers, and position
themselves to win business in the future. As a result, rivals diverted
resources away from, divested from, and/or considered exiting markets
for Monopolized Products.
By foreclosing rivals from substantial sales opportunities other
than through competition on the merits, Broadcom has maintained its
monopoly in the markets for Monopolized Products and has unreasonably
restrained competition in the markets for all Relevant Products, in
each case harming price and non-price competition, reducing innovation,
and reducing customer choice.
No legitimate procompetitive efficiencies justify Broadcom's
conduct or outweigh the substantial anticompetitive effects thereof.
Any legitimate objectives of Broadcom's conduct could have been
achieved through significantly less restrictive means.
III. Legal Analysis
Section 5 of the FTC Act prohibits unfair methods of competition,
including agreements in restraint of trade prohibited by Section 1 of
the Sherman Act and monopolization prohibited by Section 2 of the
Sherman Act.\3\ Under Section 1, a plaintiff must show (1) concerted
action that (2) unreasonably restrains competition.\4\ A Section 2
monopolization offense
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requires proof of ``(1) the possession of monopoly power in the
relevant market and (2) the willful acquisition or maintenance of that
power as distinguished from growth or development as a consequence of
superior product, business acumen or historic accident.'' \5\
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\3\ 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333 U.S. 683,
693-94 (1948).
\4\ 15 U.S.C. 1; see, e.g., Arizona v. Maricopa County Med.
Soc., 457 U.S. 332, 342-43, (1982).
\5\ In re McWane, Inc., No. 9351, 2014 WL 556261, at *11 (F.T.C.
Jan. 30, 2014), aff'd, 783 F.3d 814 (11th Cir. 2015) (quoting United
States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)); 15 U.S.C. 2.
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A. Monopolization and Restraint of Trade as to Monopolized Products
An exclusive dealing arrangement is ``an agreement in which a buyer
agrees to purchase certain goods or services only from a particular
seller for a certain period of time.'' \6\ Exclusivity need not be
expressly defined by a written contract, but can also be identified by
``look[ing] past the terms of the contract to ascertain the
relationship between the parties and the effect of the agreement in the
real world.'' \7\ No single contract needs to require 100%
exclusivity.\8\ The assessment must look beyond ``formalistic
distinctions'' and focus on ``market realities.'' \9\
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\6\ ZF Meritor v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).
\7\ Id. (cleaned up) (noting also that ``de facto exclusive
dealing claims are cognizable under the antitrust laws.''); see also
Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 326 (1961)
(exclusive dealing principles apply not only to contracts that
expressly require exclusivity, but also to those that have the
``practical effect'' of inducing a customer to purchase exclusively
from a dominant seller).
\8\ ZF Meritor, 696 F.3d at 270; see also Eastman Kodak Co. v.
Image Tech. Servs., Inc., 504 U.S. 451, 466-67 (1992) (``Legal
presumptions that rest on formalistic distinctions rather than
actual market realities are generally disfavored in antitrust
law.'').
\9\ Eastman Kodak, 504 U.S. at 466.
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Exclusive dealing may be unlawful where it enables a firm to
maintain or enhance monopoly or market power by impairing the ability
of rivals to grow into effective competitors or by depriving customers
of the ability to make a meaningful choice.\10\ Of particular relevance
is whether exclusive dealing has ``foreclose[d] competition in such a
substantial share of the relevant market so as to adversely affect
competition.'' \11\ Exclusive dealing may violate Section 1 or Section
2 of the Sherman Act, but is ``of special concern when imposed by a
monopolist.'' \12\ Thus, a Section 2 exclusive dealing claim typically
requires a greater degree of market power, but a lesser degree of
market foreclosure, than an exclusive dealing claim under Section
1.\13\
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\10\ See, e.g., In re McWane, 2014 WL 556261 at *19, 28.
\11\ ZF Meritor, 696 F.3d at 270; see also McWane, 783 F.3d at
835.
\12\ ZF Meritor, 696 F.3d at 271.
\13\ See, e.g., United States v. Microsoft Corp., 253 F.3d 34,
69-70 (D.C. Cir. 2001).
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The factual allegations in the complaint support a finding of
exclusive dealing as to the Monopolized Products in violation of
Sections 1 and 2 of the Sherman Act. Broadcom has monopoly power in the
sale of these products, as demonstrated by both direct and indirect
evidence, including high shares of markets with significant entry
barriers. And Broadcom has engaged in exclusive dealing with OEMs and
service providers through both formal agreements that bar purchases of
Monopolized Products from a Broadcom rival and ad hoc threats of
retaliation if a customer purchases from a Broadcom rival. Broadcom's
exclusive deals foreclosed substantial and competitively important
portions of the markets for Monopolized Products, weakening rivals,
harming competition, maintaining Broadcom's monopoly position, and
resulting in reduced customer choice, higher prices, and less
innovation in markets for Monopolized Products.
B. Restraint of Trade as to Related Products
In addition to harming competition in the markets for Monopolized
Products, Broadcom leveraged its monopoly power in the markets for
Monopolized Products to foreclose rivals and harm competition in the
markets for Related Products. As it involves the interaction of two or
more markets, the conduct is appropriately analyzed with reference to
tying precedent. To demonstrate tying in violation of Section 1, a
plaintiff must show (1) separate markets for the tying and tied
products; (2) defendant's market power in the tying market; (3) the
existence of a tie, and (4) that the arrangement forecloses a
substantial volume of interstate commerce in the market for the tied
product.\14\ Coercion, or ``the seller's exploitation of its control
over the tying product to force the buyer into the purchase of a tied
product that the buyer either did not want at all, or might have
preferred to purchase elsewhere on different terms,'' \15\ is a key
element in showing the existence of a tie, and can be shown using
direct or circumstantial evidence.\16\ Such coercion need not take the
form of a threat to completely withhold the tying product; a tie may
also exist where the seller offers the tying product on such terms
that, under the circumstances, accepting the tying and tied products
together is the only viable economic option for the buyer.\17\ Finally,
harm is particularly likely when the tied markets are concentrated and
the tie results in substantial foreclosure in these markets.\18\
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\14\ See, e.g., Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 461-62 (1992) (quoting N. Pac. R. Co. v. United
States, 356 U.S. 1, 5-6 (1958) and Fortner Enters., Inc. v. United
States Steel Corp, 394 U.S. 495, 503 (1969)); United States v.
Microsoft, 253 F.3d 34, 85, 87 (D.C. Cir. 2001) (``[t]he core
concern is that tying prevents goods from competing directly for
consumer choice on their merits''); Tic-X-Press v. Omni Promotions
Co., 815 F.2d 1407, 1414 (11th Cir. 1987); see also Viamedia, Inc.
v. Comcast Corp., 951 F.3d 429, 468 (7th Cir. 2020); Inre Sandoz
Pharms. Corp., 115 F.T.C. 625, 629-30 (1992).
\15\ Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12
(1984).
\16\ See, e.g., Tic-X-Press, 815 F.2d at 1418.
\17\ See, e.g., United Shoe Mach. Corp. v. United States, 258
U.S. 451, 464 (1922); Viamedia, 951 F.3d at 470-72.
\18\ See, e.g., Areeda & Hovenkamp, Antitrust Law ] 1729; see
also Einer Elhauge, Tying, Bundled Discounts, and the Death of the
Single Monopoly Profit Theory, 123 Harv. L. Rev. 397, 413 (2009).
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The factual allegations in the complaint support a finding of a
violation of Section 1 of the Sherman Act as to the Related Products.
Broadcom placed conditions on the supply and service terms associated
with the Monopolized Products so as to coerce customers to source
Related Products exclusively or nearly-exclusively from Broadcom. The
cross-conditionality was employed in the negotiation and enforcement of
relevant formal agreements and was also present in Broadcom's ad hoc
threats of retaliation. As with the Monopolized Products, Broadcom's
conduct has foreclosed substantial and competitively important portions
of the concentrated markets for Related Products, weakening rivals,
harming competition, and resulting in reduced customer choice, higher
prices, and less innovation in markets for Related Products.
IV. The Proposed Order
The proposed order seeks to remedy Broadcom's anticompetitive
conduct through three primary prohibitions. A core concept of the order
is what is termed a ``majority share requirement,'' referring to a
requirement that a customer purchase more than 50% of the customer's
requirements of a given product come from Broadcom. First, the order
prohibits Broadcom from entering into majority share requirements for
any Monopolized Product. Second, the order prohibits Broadcom from
conditioning access to Monopolized Products on a customer's agreeing to
a majority share requirement for specified Related Products. Third, the
order prohibits
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Broadcom from retaliating against a customer that refuses a prohibited
majority share requirement or that purchases products from a competitor
of Broadcom.
Paragraph I of the proposed order defines the key terms used in the
order.
Paragraph II.A. of the proposed order prohibits Broadcom from
imposing a majority share requirement on a customer's purchases of any
Monopolized Product. This provision is designed to end Broadcom's
exclusive dealing practices in the markets for Monopolized Products and
to enable the emergence of effective competition in those markets. The
prohibition applies to sales of Monopolized Products to OEMs and to
U.S. service providers. The proposed order specifically includes
prohibitions on Broadcom (1) conditioning the sale of a Monopolized
Product on a majority share requirement for that product, (2)
conditioning price terms, or non-price terms such as delivery or
support terms, for a Monopolized Product on a majority share
requirement for that product, (3) conditioning other payments on a
majority share requirement for a Monopolized Product, or (4) providing
certain types of retroactive rebates for a Monopolized Product in
exchange for a majority share requirement.
The prohibitions in Paragraph II.A. are qualified by a number of
provisos designed to assure that the order does not bar Broadcom from
competing on the merits. The first proviso clarifies that the order
does not prohibit Broadcom from fulfilling orders from a customer that,
over time, chooses to purchase more than 50% of its requirements from
Broadcom, provided that such purchases are not pursuant to a majority
share requirement prohibited by the order. The second proviso clarifies
that a customer's mere designation of Broadcom as an ``authorized'' or
``preferred'' provider does not alone establish a violation of the
order. The third proviso clarifies that the order does not prohibit
non-retroactive volume discounts. The fourth proviso allows Broadcom,
in narrow circumstances, to enter into a majority share requirement in
connection with a particular request for proposal (RFP). The proviso
provides that Broadcom may agree to a single-source term in connection
with an RFP covering a single device model (or a single device model
and certain limited derivatives thereof) if the customer structures the
RFP in this way. (In contrast, if a customer chooses to structure an
RFP to split component supply for a particular device among multiple
suppliers, Broadcom may not thwart this by insisting on exclusivity.)
The fifth proviso enables Broadcom, in specified conditions, to agree
to exclusivity terms with a customer to incent Broadcom to continue
producing a product beyond its ordinary-course end of life.
Paragraph II.B of the proposed order prohibits Broadcom from using
its monopoly power in a Monopolized Product to impose majority share
requirements for other Monopolized Products or Related Products.
Paragraph II.C of the order prohibits Broadcom from retaliating
against a customer for working with a Broadcom rival or for refusing to
commit to or maintain a prohibited majority share requirement.
Prohibited retaliation includes actual or threatened interference with
the sale or delivery of Monopolized Products; withdrawal or
modification of, or refusal to extend, relatively favorable price or
non-price terms; or refusal to deal with the customer on terms
generally available to other similarly situated customers.
The proposed order contains standard provisions designed to ensure
compliance. Paragraph III requires Broadcom to maintain an antitrust
compliance program and to provide notice to customers of the
prohibitions contained in the order. Paragraphs IV through VI contain
provisions regarding compliance reports, notice of changes in
respondent, and access to documents and personnel.
The proposed Order's prohibitions apply to agreements with Service
Providers that serve end users in the United States and to agreements
with OEMs worldwide, with the exception of agreements for the sale of
products intended for use in devices for end users in China. These
products are excluded from the prohibitions on majority share
requirements in light of distinct competitive conditions applicable to
them. The term of the proposed order is ten years.
By direction of the Commission.
Joel Christie,
Acting Secretary.
[FR Doc. 2021-16655 Filed 8-6-21; 8:45 am]
BILLING CODE 6750-01-P
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