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Intel Cuts Deal with FTC
20-page consent agreement will end the agency’s litigation against the semiconductor giant

Intel and the Federal Trade Commission this morning published the terms of the 20-page consent agreement that will end the agency's litigation against the semiconductor giant, which alleges the company waged a decade-long campaign to illegally stifle the competition to expand its own monopoly.

The FTC said Intel stepped way over the line and moved beyond the "type of aggressive competition on the merits that we all encourage and into the realm of unfair, deceptive and anti-competitive conduct."

The agency, obviously pleased with itself during a mid-morning press conference, claimed the restrictions it's negotiated with Intel are broader than other regulators have managed and given that the deal covers GPUs and compilers as well as microprocessors and chipsets that's true but the remedies agreed seem nowhere near as draconian as the suit the FTC filed in December indicated it was after. The FTC claims it got most of what it wanted.

The agency attributed part of its glee to the fact that it got a settlement at all rather than having to continue litigating, a process that it said would have taken at least another two or three years and hollowed out any remedies that might have been achieved because of changes in the industry.

The FTC regretted not having the authority to sock Intel with fines, claiming the case screamed out for financial penalties. The agency can only levy fines on violations of the agreement and then only $16,000 per violation, which it said could mount up. But even if Intel were plum reckless the FTC's dunning could probably never match the $2.7 billion Intel's already had to shell out to regulators. Although in its heart of hearts it doubtless believes that that's money well-spent it's appealing judgments in Europe and Korea.

Despite SEC evidence in the last couple of weeks that Intel paid Dell $4.3 billion between 2003 and 2006 not to buy AMD chips, money Dell used to make its numbers, Intel, for its part Wednesday, shrugged off any guilt. It said in a statement that "the settlement agreement expressly states that Intel does not admit either any violation of law or that the facts alleged in the complaint are true."

Intel's general counsel Doug Melamed said, "This agreement provides a framework that will allow us to continue to compete and to provide our customers the best possible products at the best prices. The settlement enables us to put an end to the expense and distraction of the FTC litigation."

Intel's stock price was down all of two cents at the close of business Wednesday.

AMD said nothing. It negotiated a settlement of its own antitrust suits against Intel in November and got paid $1.25 billion for its trouble. Although Intel's discounts and rebates were central to AMD's complaints, antitrust law forbids competitors to agree prices. Still, Intel's promise to abide by a "set of business practice provisions" resolved many of AMD's problems in lining up customers. It's subsequently added Sony, Dell and Lenovo, for instance, to its customer list. Anyway, Intel has been cleaning up its rebate act for the last couple of years as antitrust investigations mounted.

Nvidia, which prevailed on the FTC to include graphics chips in its claims and is suing Intel for anti-competitive practices, said that while it "supports the FTC's action to address Intel's continuing global anti-competitive conduct" it's looking forward "to Intel's actions being examined further by the Delaware courts later this year, when our lawsuit against the company is heard." Nvidia didn't get everything it was after.

The Computer & Communications Industry Association (CCIA), which sicced the Justice Department on IBM's mainframe monopoly, said the "ability of this settlement to achieve its goals remains uncertain. Much will depend how the enforcement mechanisms are structured....It also depends on Intel making a good faith effort to live up to the spirit of the agreement....Whether it does or not remains to be seen."

By the terms of the FTC agreement - which have to survive 30 days of public and competitive comment, in other words until September 7 - Intel has to:

  • Use a PCI Express bus (over whose specs Intel has little to no control) in its mainstream MPUs for the next six years so Nvidia chipsets and GPUs can interface. Nvidia would probably have preferred access to Intel's proprietary interconnects and that a lot sooner but all that's going to disappear with Sandy Bridge anyway. Meanwhile Intel's not supposed to do anything naughty like meddle with the bus so its rival's performance is compromised.
  • Let x86 license holders like AMD, Nvidia and Via merge or form joint ventures without threat of a patent lawsuit so they can begin to approximate Intel's manufacturing might. The stipulation will require modifications in their IP arrangements. All in all it merely calls for a "cooling off period" and does not outlaw patent litigation entirely. However, if this stipulation existed last year AMD, which had to sell its factories to survive, might have gotten more money out of Intel.
  • Extend Via's x86 license for five years beyond its current 2013 expiration date. Via's stuff is compatible with the x86 instruction set but it's not pin- or bus-compatible.
  • Resist using threats, bundled prices or lump sum payments to win business away from rivals, delay a rival rollout or retaliate against OEMs if those rivals get their business. Intel may still offer x% discount for sales over "y" units but may not discount x% on all units if sales exceed "y" units. Discounts are limited to specific chip lines.
  • Resist making OEM prices dependent on exclusivity or simply pay OEMs for exclusivity. Intel can still cut exclusive deals provided they're not more than a customer has asked for, especially if Intel's invested upwards of $50 million to get the business (Intel reportedly designed the first of the Apple motherboards to get its exclusive contract). In such an event Intel can only demand exclusivity until it achieves ROI or no longer than 30 months. Exclusivity is limited to a new segment, channel or product. Intel can only enter 10 exclusive agreements over the next 10 years or two in any 12 months unless the FTC waives it through.
  • Resist basing pricing on an OEM's "market share," in other words how much of an OEM's total purchases it gets from Intel even if a rival has based its discounts on that criterion, and for Intel that means no longer than a year.
  • Explain to ISVs that its compilers lied and made AMD chips seem to under-perform. Intel has to set up a $10 million fund to reimburse developers who want to re-run their results on other compilers. The offer is supposed to be good for two years but only on a documented first-come-first-serve basis until the money is exhausted. Some observers think this is the most novel and deserved of the remedies. Intel also has to avow that any comparative benchmarks may have been optimized for its chips.
  • Abjure any design changes that don't improve performance, operation, cost, manufacturability, reliability or comparability and, if they do, run them by the FTC.
  • Ensure that its product roadmaps are accurate and keep rivals updated on a limited schedule.
  • Pay technical consultants no more than $2 million over the 10-year term of the consent decree to its police performance. Intel has to give them, their engineers, accountants and lawyers carte blanche access to its people, books, ledgers, records, facilities, memoranda, documents, correspondence and technical information.
  • Make written reports to the FTC.
  • Tell the FTC 30 days ahead of time about any acquisition, merger or consolidation.

Intel can still match discounts; condition its discounts on quantity or minimum numbers; and stagger discounts provided the terms are in writing, a situation it claims it overlooked before and observers claim weren't in writing due to illegalities.

The remedies aren't supposed to have any material impact on Intel's financial results but that of course remains to be seen.

The FTC charged Intel with violating Section 5 of the FTC Act, which the agency says is broader than the antitrust laws but unlike the antitrust laws can't be used by plaintiffs seeking treble damages in private litigation.

The agreement and the FTC original suit are on Intel's web site at www.intel.com/pressroom/legal.

About Maureen O'Gara
Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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