Standard Setting by Governmental or Quasi-Governmental Bodies

Governmental or quasi
governmental entities often play an important
role in setting and implementing standards. Governmental involvement
in the standard-setting process requires consideration of various antitrust
immunities and exemptions created by Congress and the courts.
Congress has enacted legislation creating express or implied antitrust
immunity in specific industries. The
state action doctrine and the
doctrine can also immunize conduct from the antitrust
1 This chapter discusses the antitrust exemptions and immunities
that may apply when the government is involved in the standard-
Federal Regulatory Immunity
Federal government agencies have adopted thousands of standards,
and the actions of these agencies are immune from antitrust challenge.2
In specific areas, Congress has encouraged competitors to work together,
providing private parties
express immunity from antitrust liability in
3 At other times, however, the government has not provided
1. Depending on the state, immunities may also be available from state
antitrust and unfair competition statutes.
Chapter I.A.1 for a discussion of government adopted standards.
Federal agencies, and agency officials acting in their official capacity, are
immune from antitrust liabil
See, e.g.
, Lawline v. Am. Bar Ass’n
F.2d 1378, 1384 (7th Cir. 1992) (executive committee and U.S. Trustee
of U.S. district court were immune from antitrust liability for their roles
in adopting ABA model rule regarding unauthorized practice of law);
Sys. v. Holiday, 814 F.2d 994, 997 (4th Cir. 1987) (Department of Navy
and Navy officials acting in official capacity are not “persons” subject to
potential Sherman Act liability).
3. See, e.g., Agricultural Marketing Agreement Act of 1937, 7 U.S.C.
§ 608b (expressly exempting marketing orders promulgated pursuant to
the AMAA by the Secretary of Agriculture from antitrust laws); Clayton
Act, 15 U.S.C. § 17 (antitrust laws not applicable to labor organizations);
-Bulwinkle Act, 49 U.S.C. § 10706(a)(5)(A) (rate agreement
between shippers, if approved by Surface Transportation Board as
furthering transportation policy, is expressly exempted from an titrust
laws); Capper-Volstead Act, 7 U.S.C. § 291 (exempting from antitrust
laws farmers’ associations, corporate or otherwise, engaged in
Handbook on the Antitrust Aspects of Standard Setting
any express immunity but has nonetheless encouraged competitors to act
together to develop a standard. For example, the Federal
Communications Commission (FCC) sought to develop a single standard
for the development of a digital television broadcast and empanelled an
advisory committee comprised of industry participants to do so.4 The
committee members worked together to develop and test prototype
standards. The committee found that four competing systems were
viable, and the three groups that had developed those four systems
created an alliance to produce a single system to propose as the standard
for digital broadcasting. This coordinated effort was undertaken without
any express immunity.
Difficult issues may arise in such circumstances because the mere
fact that federal officials knew of or induced private conduct is
insufficient to confer antitrust immunity.5 However, in certain limited
circumstances, antitrust immunity may be implied where a federal
statute, its legislative history, and any accompanying adminis
regulatory scheme all appear incompatible with application of the
collectively processing, handling, and marketing thei
r products for mutual
benefit of their members); Am. Fed’n of Musicians v. Carroll, 391 U.S.
99, 106 (1968) (holding that challenged musicians’ union practices fall
within the definition of “labor dispute” and thus were exempt from the
antitrust laws under the Norris-LaGuardia Act, 29 U.S.C. §
States v. Tucor Int’l, Inc., 189 F.3d 834, 837 (9th Cir. 1999) (defendant
motor carriers operating entirely within the Philippines were expressly
exempted from antitrust liability by the Shipping Act of 1984);
Newspaper Agency v. Bronster, 103 F.3d 742, 749-50 (9th Cir. 1996)
(Newspaper Preservation Act, 15 U.S.C. §§ 1801-03, expressly exempts
from the antitrust laws newspaper joint operating agreements entered into
at a time when only one of the newspapers is likely to remain or become
financially sound).
4. In re Advanced Television Sys. and Their Impact on Existing Television
Broadcast Serv., Fifth Further Notice of Proposed Rulemaking, 11
F.C.C.R. 6235
9, 1996).
5. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225
(knowledge and acquiescence of federal officials does not
unize private scheme to stabilize petroleum prices);
Union v. Rogers, 352 F. Supp. 1319, 1323 (D.D.C. 1973)
modified sub
Consumers Union v. Kissinger, 506 F.2d 136 (D.C. Cir. 1974)
(“President clearly has no authority to give binding assurances that a
particular course of conduct, even if encouraged by his representa
does not violate the Sherman Act . . . any more than he can grant
immunity under such” law); see also Otter Tail Power Co. v. United
, 410 U.S. 366, 378-79 (1973) (federal officials’ approval of
challenged electricity distribution contracts did not confer an titrust

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