{"id":1501,"date":"2020-10-29T14:06:09","date_gmt":"2020-10-29T14:06:09","guid":{"rendered":"https:\/\/www.tantraanalyst.com\/insights\/?p=1501"},"modified":"2023-01-03T09:20:01","modified_gmt":"2023-01-03T09:20:01","slug":"ftc-vs-qualcomm-qualcomm-wins-the-antitrust-case-completely-and-decisively","status":"publish","type":"post","link":"https:\/\/www.tantraanalyst.com\/ta\/ftc-vs-qualcomm-qualcomm-wins-the-antitrust-case-completely-and-decisively\/","title":{"rendered":"FTC vs. Qualcomm: Qualcomm wins the antitrust case, completely and decisively"},"content":{"rendered":"
\"Qualcomm\"<\/a>
RCR Wireless News, October 29, 2020<\/figcaption><\/figure>\n
After pointlessly fighting tooth and nail for almost two years, FTC will now be forced to end the case,<\/span>
after the latest setback at The United States Court of Appeals for the Ninth Circuit (Ninth Circuit). The Ninth Circuit\u2019s well expected en banc denial, following a series of upsets, put the death nail in the coffin. After the direct, clear, and very short seven-line opinion, I am certain that FTC will not even imagine knocking on the doors of the U.S. Supreme Court.<\/span><\/h6>\n
This decision clears all the clouds hovering around Qualcomm\u2013the country\u2019s 5G crown jewel. This will<\/span>
also have a long-lasting impact not only on its licensing business and policies but also on the technology<\/span>
industry and innovations as a whole.<\/span><\/h6>\n
Side note: If you would like to know the full background of the case, follow this\u00a0FTC vs. Qualcomm article series<\/span>.<\/a><\/em><\/span><\/strong><\/h6>\n
A wave of setbacks for the FTC<\/strong><\/span><\/h6>\n
After some initial success at the United States District Court for the Northern District of California (US <\/span>District Court), FTC has constantly seen setbacks, and at times, very harsh rebukes at the Ninth Circuit.<\/span><\/h6>\n
First<\/a>, the three-judge panel unanimously accepted Qualcomm\u2019s request for the stay, with a ruling that <\/span>almost ridiculed the US District Court\u2019s decision. The panel opined it as \u201c\u2026a trailblazing application of <\/span>the antitrust laws or \u2026 an improper excursion beyond the outer limits of the Sherman Act\u2026\u201d<\/span><\/h6>\n
Second<\/a>, when another three-judge appeals panel heard the case, its questioning and doubting FTC\u2019s <\/span>confusing arguments made it amply clear which way the panel was leaning.<\/span><\/h6>\n
Third<\/a>, the actual unanimous judgment almost shredded the US District Court\u2019s decision and\u00a0completely reversed it and threw it out, including the initial summary judgment. The opinion written by Judge Callahan was a tell-a-tale of how US District Court Judge, Lucy Koh miss-applied the antitrust laws.<\/span><\/h6>\n
Finally, this wholesome denial of the en banc request was yet another strong strike against FTC\u2019s <\/span>unfounded fascination in continuing the unworthy prosecution of a free and very successful American <\/span>enterprise. It indeed quashed the hopes of some who thought the surprise move of FTC Chairman <\/span>Joseph J. Simons<\/span><\/a>, a Trump appointee, to authorize the en banc request had brought life back into the <\/span>case.<\/span><\/h6>\n
In retrospect, the case has gone through a whole slew of US Federal judges\u2014six judges of the panels, to <\/span>some extent the full Ninth Circuit bench of more than 25 judges. But the only sympathizer for FTC, from <\/span>the US legal system, seems to be Judge Lucy Koh of the US District Court. As an observer who attended <\/span>almost all the court hearings, I found her handling of the case to be bizarre. Some of the examples of her strange behavior include: artificially limiting the discovery period which skewed the case, clinging on to <\/span>the hypotheses such as \u201ctax on the competitor,\u201d which were rejected by other courts and judges, <\/span>rejecting the testimonies of all of Qualcomm\u2019s executives, including that of its highly respected and <\/span>revered founder, and an industry veteran, Dr. Irwin Jacobs.<\/span><\/h6>\n
A series of unfortunate events<\/strong><\/span><\/h6>\n
As I have indicated many times in my\u00a0earlier articles<\/span><\/a>, this case had a lot of oddities right from the <\/span>beginning and they continued throughout the proceedings. The case was filed in the last days of the <\/span>previous administration, with only partial commission present. The sitting FTC commissioner publicly <\/span>criticized the case by writing a harsh rebuke on\u00a0The Wall Street Journal<\/a>.<\/span> When the full commission was <\/span>constituted, the Chairman recused from the case, making the decision a tie with two commissioners <\/span>supporting and the other two opposing. That made the case almost run on autopilot, managed by the <\/span>FTC staff. Apple, which was one of the alleged instigators and a major witness in the case, settled with <\/span>Qualcomm and ended its active support.<\/span><\/h6>\n
Many U.S. Government agencies opposed FTC\u2019s action. The U.S. Department of Justice, which shares the <\/span>responsibility and partners with FTC on antitrust matters, vehemently opposed the case and even took <\/span>the unprecedented step of testifying against it at the appeals hearing. Many legal scholars and previous <\/span>FTC commissioners, Ninth Circuit judges, opined against the case.<\/span><\/h6>\n
What\u2019s next?<\/span><\/strong><\/h6>\n
Although FTC has a theoretical option of knocking on the door of the US Supreme Court, I don\u2019t think <\/span>these series of setbacks and strong rebukes leave it any option other than to close the case and move <\/span>on. If the appeals decision was not unanimous, not a complete reversal, or the en banc was accepted, <\/span>there was some justification. Without any of those, it would be utterly stupid for FTC to continue the <\/span>case and waste even more taxpayer money.\u00a0<\/span>If they had any doubts, the Ninth Circuit\u2019s en banc unambiguous opinion, which is mere seven lines long<\/span>
makes it pretty clear. That is the shortest court document that I have ever seen and analyzed. Many go <\/span>up to a hundred pages or more.<\/span><\/h6>\n
This decision for sure clears all the doubts around Qualcomm\u2019s licensing policies and the industry- <\/span>standard practice of licensing to OEMs. That means the practice of calculating licensing fees based on <\/span>the price of the device (with caps, of course) is completely valid and legal. <\/span>The case establishes a pretty significant precedence for licensing practices and applicability of antitrust <\/span>laws. It will have a long-lasting impact on not only the cellular but almost the entire technology industry <\/span>and beyond. With 5G set to transform almost every industry on the planet, the repercussions of the case <\/span>are impossible to overstate. Look for a detailed article on this from me soon.<\/span><\/h6>\n
Meanwhile, for more articles like this, and up-to-date analysis of the latest mobile and tech industry <\/span>news, sign-up for our monthly newsletter at\u00a0TantraAnalyst.com\/Newsletter<\/a>,<\/span> or listen to our\u00a0Tantra\u2019s<\/span>\u00a0<\/a><\/span>Mantra podcast.<\/span><\/h6>\n\n\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

After pointlessly fighting tooth and nail for almost two years, FTC will now be forced to end the case,after the latest setback at The United States Court of Appeals for the Ninth Circuit (Ninth Circuit). The Ninth Circuit\u2019s well expected en banc denial, following a series of upsets, put the death nail in the coffin. […]<\/p>\n","protected":false},"author":2,"featured_media":1631,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"image","meta":{"mc4wp_mailchimp_campaign":[],"footnotes":""},"categories":[7],"tags":[],"class_list":["post-1501","post","type-post","status-publish","format-image","has-post-thumbnail","hentry","category-ipr","post_format-post-format-image"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/posts\/1501","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/comments?post=1501"}],"version-history":[{"count":0,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/posts\/1501\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/media\/1631"}],"wp:attachment":[{"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/media?parent=1501"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/categories?post=1501"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.tantraanalyst.com\/ta\/wp-json\/wp\/v2\/tags?post=1501"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}