FTC finally throws in the towel over Qualcomm antitrust case

The US Federal Trade Commission reckons Qualcomm’s licensing practices are anticompetitive, but not much of the legal profession agrees.

An initial ruling against Qualcomm was overturned by the court of appeal last August. Having had half a year to think about whether to try and contest that ruling in the Supreme Court, the FTC has decided it’s chances of succeeding are slim, so it’s not going to bother.

“Given the significant headwinds facing the Commission in this matter, the FTC will not petition the Supreme Court to review the decision of the Court of Appeals for the Ninth Circuit in FTC v. Qualcomm,” said Acting FTC Chairwoman Rebecca Kelly Slaughter. “The FTC’s staff did an exceptional job presenting the case, and I continue to believe that the district court’s conclusion that Qualcomm violated the antitrust laws was entirely correct and that the court of appeals erred in concluding otherwise.

“Now more than ever, the FTC and other law enforcement agencies need to boldly enforce the antitrust laws to guard against abusive behaviour by dominant firms, including in high-technology markets and those that involve intellectual property. I am particularly concerned about the potential for anticompetitive or unfair behaviour in the context of standard setting and the FTC will closely monitor conduct in this arena.”

When the decision was overturned last year, the appeals Judge essentially seemed to think the original Judge had got a bit carried away when it came to drawing the line between ‘very competitive’ and ‘anticompetitive’. At the end of the above statement Slaughter indicated a desire to keep an especially close eye on standard-essential patents, which may become increasingly important as the US government seeks to put its thumb on the scales over the 6G standard.

The Biden administration seems to have a bit of a thing for going after big tech and seems intent on giving the FTC a major role in that process. If so then this represents an early setback for the FTC. It’s not clear what the ‘headwinds’ were that it faced, but Slaughter’s statement could be a signal to the government that it’s unlikely to be successful in shaking big tech down for some hefty fines unless the legal environment changes.