Announced Action(s) for May 16, 1997

The Federal Trade Commission today announced the following actions.

Applications for approval of transactions: The FTC has received an application for approval for a transaction from the following entity. The FTC is seeking public comments on it for 30 days. A May 2 advisory from the Commission announced this application for public comment until June 2; in fact, the full application was not received until yesterday, so the 30-day comment period begins today and ends June 16.

• Phillips Petroleum Company, of Bartlesville, Oklahoma, has applied for FTC approval to divest approximately 160 miles of its natural gas pipeline system in Oklahoma to KN Gas Gathering, Inc., of Douglas, Wyoming. The divestiture of this pipeline is required under a March 1997 consent order settling charges that Phillips’ acquisition of gas gathering assets from ANR Pipeline Company would violate antitrust laws because it would substantially reduce competition for natural gas gathering services in areas of five Oklahoma counties. The divestiture is designed to restore competition. (See Dec. 30, 1996 news release for more details about this case; Docket No. C-3728.) Staff contact is Elizabeth Piotrowski, 202-326-2623.

Commission action regarding applications for approval: Following a public comment period, the Commission has ruled on an application for approval of a transaction from the following entity:

• The FTC has approved the application of The Upjohn Company, of Kalamazoo, Michigan, and Pharmacia Aktiebolag, a Swedish firm, to divest to IDEC Pharmaceuticals Company, of San Diego, California, the research and development assets related to "9-AC," a chemotherapeutic agent. Divestiture of the 9-AC assets is required under a February 1996 consent order designed to restore competition that allegedly was injured when Upjohn and Pharmacia merged. (See Oct. 27, 1995 news release for more details regarding this case; Docket No. C-3638; Commission vote to approve the divestiture was 5-0.) Staff contact is Elizabeth Piotrowski, 202-326-2623.

Petitions to reopen and modify or set aside orders: The FTC has received a petition from the following entity seeking changes in, or termination of, an FTC order. The FTC is seeking public comments on the newly-received petition for 30 days, until June 16.

• Zurich, Switzerland-based Oerlikon-Buhrle Holding AG has petitioned the FTC to remove from a February 1995 consent order the requirements that the firm, until February 2005, obtain the prior approval of the Commission for acquisitions of any interest in an entity that manufactures turbomolecular pumps or compact disc metallizers. The order settled charges that Oerlikon-Buhrle’s acquisition of Leybold AG could raise prices and reduce innovation in the markets for these two products, used in manufacturing semi conductors and in making compact discs, respectively. (See Oct. 27, 1994 news release for more details about the February 1995 consent order; Docket No. C-3555.) Staff contact is Daniel Ducore, 202-326-2526.

Consent agreements given final approval: Following a public comment period, the Commission has made final a consent agreement with the following entity. The Commission action makes the consent order binding on the respondent.

• The consent order with American Cyanamid Company, of Parsippany, New Jersey, settles charges that the company violated antitrust laws by fixing the resale prices of its agricultural chemical products. The consent order prohibits American Cyanamid from conditioning the payment of rebates or other incentives on the resale prices its dealers charge for American Cyanamid products, and from agreeing with its dealers generally to control or maintain resale prices. For three years, the company must post clearly and conspicuously a statement on any price list, advertising or catalogue where it suggests a resale price explaining that, while American Cyanamid may suggest resale prices, dealers remain free to determine on their own the prices at which they sell the company’s products. American Cyanamid also must mail a letter containing this statement to all current dealers, distributors, officers, management employees and sales representatives. (See Jan. 30, 1997 news release for more details regarding this consent order; Docket No. C-3739; Commission vote on May 12 to issue the order as final and binding was 4-1, with Commissioner Mary L. Azcuenaga issuing a concurring statement, Commissioner Roscoe B. Starek, III, dissenting and issuing a statement, and the majority issuing a responding statement. Starek said: "On several grounds, . . . this matter represents a poor policy choice by the Commission. From a legal perspective, AmCy’s conduct does not constitute an illegal agreement to maintain resale prices; from an economic perspective, the evidence points to the conclusion that AmCy’s conduct was procompetitive; and from a policy perspective, the Commission’s decision hardly delineates a clearer distinction (and in fact seriously blurs the line) between conduct likely to be subject to per se condemnation and conduct that is not. Instead of reaching for ways to expand the application of the per se rule to conduct that is plainly procompetitive, enforcers should reserve their heavy hand for conduct that falls within standards for per se illegality clearly enunciated by the Supreme Court."

In their statement, Chairman Robert Pitofsky, and Commissioners Janet D. Steiger and Christine A. Varney said the agreement is consistent with legal precedent. "If an agreement to forego one’s entire profit margin if one departs from the specified prices does not constitute a price maintenance agreement, then nothing remains of the per se rule."  

Commissioner Azcuenaga said she concurred in the majority’s decision but did not join its statement, observing that her views "are contained entirely within the four corners of the decisional document." She added: "If the majority wants to revise or expand its decision, the proper course is to revise the decisional document.")  

Staff contact is Michael Antalics, 202-326-2821.

Comments on the application and petition should be addressed to the FTC, Office of the Secretary, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580. Copies of the documents referenced above are available from the FTC’s Public Reference Branch, Room 130, at the same address; 202-326-2222; TTY for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202- 326-2710. FTC news releases and other materials also are available on the Internet at the FTC’s World Wide Web site at: http://www.ftc.gov