43544 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices 

1 15 U.S.C. 69 et seq. 

SUMMARY: The FTC requests that the 

Office of Management and Budget 

(OMB) extend for three years the current 

Paperwork Reduction Act (PRA) 

clearance for information collection 

requirements contained in the Rules and 

Regulations under the Fur Products 

Labeling Act (Fur Rules or Rules). That 

clearance expires on August 31, 2021. 

DATES: Comments must be received by 

September 8, 2021. 

ADDRESSES: Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to www.reginfo.gov/public/do/ 

PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under 30-day Review—Open 

for Public Comments’’ or by using the 

search function. The reginfo.gov web 

link is a United States Government 

website produced by OMB and the 

General Services Administration (GSA). 

Under PRA requirements, OMB’s Office 

of Information and Regulatory Affairs 

(OIRA) reviews Federal information 

collections. 

FOR FURTHER INFORMATION CONTACT: Jock 

K. Chung, Attorney, Division of 

Enforcement, Bureau of Consumer 

Protection, Federal Trade Commission, 

Mail Code CC–9528, 600 Pennsylvania 

Ave. NW, Washington, DC 20580, (202) 

326–2984. 

SUPPLEMENTARY INFORMATION:

Title: Rules and Regulations under the 

Fur Products Labeling Act, 16 CFR part 

301. 

OMB Control Number: 3084–0099. 

Type of Review: Extension of a 

currently approved collection. 

Likely Respondents: Retailers, 

manufacturers, processors, and 

importers of furs and fur products. 

Frequency of Response: Third party 

disclosure; recordkeeping requirement. 

Estimated Annual Hours Burden: 

303,001 hours (50,100 hours for 

recordkeeping + 252,901 hours for 

disclosure). 

Recordkeeping: 50,100 hours [950 

retailers incur an average recordkeeping 

burden of about 18 hours per year 

(17,100 hours total); 75 manufacturers 

incur an average recordkeeping burden 

of about 60 hours per year (4,500 hours 

total); and 950 importers of furs and fur 

products incur an average 

recordkeeping burden of 30 hours per 

year (28,500 hours total)]. 

Disclosure: 252,901 hours [(214,834 

hours for labeling + 67 hours for 

invoices + 38,000 hours for 

advertising)]. 

Estimated Annual Cost Burden: 

$5,194,259 (solely relating to labor 

costs). 

Abstract: The Fur Products Labeling 

Act (Fur Act) 1 prohibits the 

misbranding and false advertising of fur 

products. The Fur Rules establish 

disclosure requirements that assist 

consumers in making informed 

purchasing decisions, and 

recordkeeping requirements that assist 

the Commission in enforcing the Rules. 

The Rules also provide a procedure for 

exemption from certain disclosure 

provisions under the Fur Act. 

Request for Comment 

On June 2, 2021, the FTC sought 

public comment on the information 

collection requirements associated with 

the Rule. 86 FR 29581. The Commission 

received no germane comments. 

Pursuant to the OMB regulations, 5 CFR 

part 1320, that implement the PRA, 44 

U.S.C. 3501 et seq., the FTC is providing 

this second opportunity for public 

comment while seeking OMB approval 

to renew the pre-existing clearance for 

the Rules. 

Your comment—including your name 

and your state—will be placed on the 

public record of this proceeding. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, such as anyone’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 that your 

comment does not include any 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. 

Josephine Liu, 

Assistant General Counsel for Legal Counsel. 

[FR Doc. 2021–16956 Filed 8–6–21; 8:45 am] 

BILLING CODE 6750–01–P 

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. 

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 https://www.regulations.gov by 

following the instructions on the webbased 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:// 


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Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices 43545 

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 

Continued 

www.ftc.gov/news-events/commissionactions. 

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 https://

www.regulations.gov 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 https://

www.regulations.gov 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 

https://www.regulations.gov, 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 https://

www.regulations.gov 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 http://

www.ftc.gov 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 

https://www.ftc.gov/site-information/ 

privacy-policy. 

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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43546 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices 

streaming ‘‘internet protocol’’ (IP) signals, often 

over an internet connection. 2The proposed order refers to Monopolized 

Products and Related Products as ‘‘Primary 

Products’’ and ‘‘Secondary Products,’’ respectively. 

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). 

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. 

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 componentsupplier 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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Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices 43547 

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. 

6ZF 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. 

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). 

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). 

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

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

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

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

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 nearlyexclusively from Broadcom. The crossconditionality 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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43548 Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Notices 

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 nonretroactive 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 singlesource 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 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Meeting: Advisory Board on Radiation 

and Worker Health (ABRWH), 

Subcommittee for Dose 

Reconstruction Reviews (SDRR), 

National Institute for Occupational 

Safety and Health (NIOSH) 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Notice of meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act, the 

CDC announces the following meeting 

for the Subcommittee for Dose 

Reconstruction Reviews (SDRR) of the 

Advisory Board on Radiation and 

Worker Health (ABRWH or the Advisory 

Board). This meeting is open to the 

public, but without a public comment 

period. The public is welcome to submit 

written comments in advance of the 

meeting, to the contact person below. 

Written comments received in advance 

of the meeting will be included in the 

official record of the meeting. The 

public is also welcomed to listen to the 

meeting by joining the audio conference 

(information below). The audio 

conference line has 150 ports for callers. 

DATES: The meeting will be held on 

September 29, 2021, from 10:30 a.m. to 

4:00 p.m., EDT. Written comments must 

be received on or before September 22, 

2021. 

ADDRESSES: You may submit comments 

by mail to: Sherri Diana, National 

Institute for Occupational Safety and 

Health, 1090 Tusculum Avenue, MS 

C–34, Cincinnati, Ohio 45226. 

Meeting Information: Audio 

Conference Call via FTS Conferencing. 

The USA toll-free dial-in number is 

1–866–659–0537; the pass code is 

9933701. 

FOR FURTHER INFORMATION CONTACT: 

Rashaun Roberts, Ph.D., Designated 

Federal Officer, NIOSH, CDC, 1090 

Tusculum Avenue, Mailstop C–24, 

Cincinnati, Ohio 45226, Telephone: 

(513) 533–6800; Toll Free 1(800)CDC– 

INFO; Email: ocas@cdc.gov. 

SUPPLEMENTARY INFORMATION:

Background: The Advisory Board was 

established under the Energy Employees 

Occupational Illness Compensation 

Program Act of 2000 to advise the 

President on a variety of policy and 

technical functions required to 

implement and effectively manage the 

new compensation program. Key 


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