The Broadband Forum Antitrust Guidelines
The Broadband Forum (hereafter also referred to as “the Forum”) is an international organization with members from around the world. Accordingly, the activities of the Forum and its members may become subject to the antitrust and competition laws of multiple countries. While antitrust laws vary from country to country, nearly all of these laws prohibit joint activities that restrain trade. In order to better serve the membership of the Broadband Forum and protect both the Forum and its participants, the Board of Directors of the Broadband Forum is issuing the following information pertaining to the Forum’s Antitrust guidelines and their enforcement.
The consequences of non-compliance with these guidelines can be very serious for both the individuals involved and the Forum. These could include criminal and civil penalties and even dissolution of the Forum.
The complete Antitrust guidelines can be found below. It is important to note you must adhere by these guidelines not only during the meetings of the Forum and its work areas, but also during any activities that result as part of your attendance at the Forum. It is inappropriate to engage in any conversations in between sessions – in the hallways, the elevators, over lunch, etc. – that would be inappropriate to be held in a Forum meeting. Please take particular care to avoid questionable topics in any Forum contribution.
In the event that you are part of a conversation that you sense is a violation, you should disassociate yourself from it immediately. If you feel that you have witnessed a blatant violation, please report it to the Forum Secretariat or a member of the Board of Directors for action.
Enforcement of Guidelines
Should a violation of the Antitrust guidelines be brought to the attention of the Forum, the Board will take appropriate action as it sees is suited to the incident. Examples of actions that may be taken include but are not limited to:
- discussion of the incident with the individual(s),
- discussion of the incident with member company management,
- requesting the member company send different representation to the meetings,
- revoking the member company membership.
Please note that the Forum also may be obligated to report violations to regulatory authorities.
Please read the guidelines below carefully and if you have any questions, notify the Secretariat’s office. Your questions will be answered promptly.
As stated in its Bylaws, the Broadband Forum must abide by antitrust laws. The group, of course, brings competitors together, often with customers, and opportunities for collusion or exclusion abound. Standards development and related activities are recognized by most regulatory authorities to have pro-competitive effects that benefit consumers. Accordingly, Forum members do not need to be concerned about legal liability in connection with participating in such activities, provided that these Guidelines are observed. Cooperative efforts themselves are perfectly legal, but it is important that The Broadband Forum conduct itself such that all meetings, programs, and publications do not raise any questions about our compliance with these laws. Accordingly, in an abundance of caution, the Forum guidelines may go beyond the prohibitions of current law.
The penalties for violating antitrust laws can be quite severe, including large fines and even imprisonment of individuals found guilty of illegal conduct. Moreover, the U.S. Supreme Court has ruled that an industry consortium such as The Broadband Forum may be held legally responsible for the unauthorized, as well as authorized, acts of its members. Therefore, every effort must be made to avoid even the appearance of impropriety of all Broadband Forum members.
Common violations of the antitrust laws are agreements among competitors to fix prices or to allocate customers or markets. However, a wide variety of activities can fall under these categories. For example, setting ceilings as well as floors for prices can be a violation of law, and for this reason, any discussions touching in any way on prices or pricing practices should be considered to be in violation of these Guidelines.
The Broadband Forum’s purpose is to coordinate pre-competitive activities that benefit the entire telecommunications industry. The Broadband Forum does not involve itself in individual member’s activities or in the marketing of particular member’s products. Accordingly, it is not the business of The Broadband Forum to consider or discuss matters relating to product development, marketing, purchasing, or pricing decisions of individual companies.
The guidelines that follow set out a set of rules to live by when attending Forum functions or engaging in Forum activities. They are more proscriptive than descriptive, that is, they direct or prohibit action rather than describe the law and let members figure out for themselves what to do. However, this list cannot be considered comprehensive. Member companies should be advised to (1) when in doubt err on the side of caution and (2) seek guidance from your employer’s legal counsel whenever a matter demanding interpretation arises.
- IN FACT OR APPEARANCE, discuss or exchange information regarding;
- Individual company current or projected prices, price changes, price differentials, markups, discounts, allowances, terms and conditions of sale, including credit terms, etc., or data that bear on prices, including profits, margins, or costs.
- Industry pricing policies, price levels, price changes, differentials, or the like.
- Changes in industry production, capacity, or inventories.
- Individual company bids or intentions to bid for particular products, procedures for responding to bid invitation, or specific contractual arrangements.
- Plans of individual companies concerning the design, characteristics, production, distribution, marketing, or introduction dates of particular products, including proposed territories or customers.
- Matters relating to actual or potential individual suppliers or customers that might have the effect of excluding them from any market or of influencing the business conduct of firms toward suppliers or customers.
- Individual company current or projected costs of procurement, development, or manufacture of any product.
- Individual company market shares for any product or for all products.
- Discuss or exchange information regarding the above matters during social gatherings incidental to Broadband Forum-sanctioned meetings, even in jest.
- Adopt formal meeting agendas.
- Adhere to them.
- Minute all meetings, review them, and approve them.
- If you sense a violation, disassociate yourself from it immediately.
- Neither The Forum nor any of its committees or activities shall be used for the purpose of bringing about or attempting to bring about any understanding or agreement, written or oral, formal or informal, express or implied, among and between competitors with regard to any of the “Don’t” topics above.
- There shall be no discussion, communication or other exchange between members of The Forum and/or their representatives of prices, pricing methods, production quotas or other limitations on the timing, costs, or volume of production or sale, or allocation of territories or customers.
- No activity or communication of The Forum or any of its members or representatives thereof shall include any discussions which might be construed as an agreement or understanding to refrain, or to encourage a member to refrain, from purchasing any raw materials, equipment, services, or other supplies from any suppler or other dealing with any supplier.
- No Broadband Forum activity or communication, or that of its members or the representatives thereof, shall include any discussion which might be construed as an attempt to prevent any person or business entity from gaining access to any market or customer for goods and services, or to prevent any business entity from obtaining a supply of goods or services or otherwise purchasing goods or services freely in the market.
- The qualifications for membership in The Forum are set forth in the Certificate of Incorporation and in the Bylaws of The Forum. No applicant for membership, who otherwise meets the qualifications set forth therein, shall be rejected for any anti-competitive purpose or for the purpose of denying such applicant the benefits of membership. Expulsion from membership in The Forum shall follow procedures established in the Bylaws of the Forum, and shall not be for any anti-competitive purpose.
- Neither The Forum nor any committee or member thereof shall make any effort to bring about the standardization of any product or service for the purpose or with the effect of preventing the manufacture, sale, or supply of any product or service not conforming to a specified standard.
- To the extent that The Forum through its committees and membership develops, recognizes or approves specifications which, if followed, will permit specific equipment, service or network to interoperate with any other equipment, service or network, adherence to such specifications shall be voluntary on the part of the members of The Forum and shall in no way be compelled, directed, or coerced by The Forum or any committee thereof, it being solely a voluntary decision on the part of the particular member or members of The Forum as to whether to adhere to or comply with any such specifications.
- Any specifications which may be developed or approved by the membership of The Forum in order to effectuate the purposes of The Forum as set forth in its Certificate of Incorporation and Bylaws shall in no way be based upon any effort, intention, or purpose of any of its members to reduce or eliminate competition in the sale, supply, and furnishing of products and services.
- Neither The Forum nor any committee thereof shall impose sanctions for the violation of, nor shall they enforce compliance with, standards or specifications developed, promulgated, recognized, or approved by The Forum.
- Should a request be made by anyone for interpretation or definition of a specification or standard developed, promulgated, recognized, or approved by the Broadband Forum, the committee which has received such a request shall consult with the counsel for The Forum before providing any such interpretation or definition.
- In conducting any Board of Directors, general, special, or committee meetings of The Forum, the Chairman of each such meeting shall prepare and follow a formal agenda. Where appropriate, the minutes of meetings of the Board of Directors and committees should be reviewed in advance by counsel before submission to the membership or Board of Directors, as the case may be, for approval.
Each member, and any new member, of The Forum shall be supplied with a copy of these guidelines and agrees to abide by them.