AAI - Filed comment to FTC - 4 24 08 - Balto-Wolfram

April 24, 2008 Donald Clark Secretary Federal Trade Commission Washington, DC 20580 Re: In the matter of Negotiated Data Solutions, LLC; FTC File No. 051 0094 Dear Secretary Clark, On behalf of the American Antitrust Institute (AAI), the Consumer Federation of America, and the Public Patent Foundation, we respectfully submit the following public comments regarding the Federal Trade Commission’s Proposed Consent Order in the Negotiated Data Solutions (“N-Data”) matter. We believe that the Federal Trade Commission’s enforcement action is based on sound, mainstream antitrust principles, and protects consumers in an important high-technology market. Moreover, by articulating how opportunistic conduct by a non-practicing entity (“NPE”) can constitute unlawful conduct under Section 5 of the FTC Act, the Commission has established an important precedent which will protect consumers from this type of conduct in other standard setting environments. We comment below about various issues raised in the Majority’s statement and the dissents. We begin, however, with the importance of the N-Data decision from an institutional perspective. Congress created the FTC over 90 years ago for a unique mission – to create an expert body which through the enforcement of a broad statute could address anticompetitive and deceptive conduct that could not necessarily be addressed under the traditional antitrust laws. Institutionally, by creating an expert ...