NTCA–The Rural Broadband Association (NTCA) assigns the highest priority to full compliance with both the letter and the spirit of the antitrust laws, and it is vital that this meeting be conducted in a manner consistent with that policy. If at any time during the course of the meeting staff believes that a sensitive topic under the antitrust laws is being discussed, or is about to be discussed, they will so advise the meeting and halt further discussion. As attendees at this meeting, you likewise should not hesitate to voice any concerns you may have in this regard.
It is important to bear in mind that those in attendance at this meeting may be your competitors. NTCA members should avoid discussing certain subjects when they are together-both at formal NTCA meetings and in informal contacts with other industry members-and should adhere strictly to the guidelines that follow. In general, the types of discussion that should be avoided are those that may suggest or tend to reflect agreements among competitors as to: price; terms of sale that could impact price; allocation of customers, markets or territories; bid-rigging; and boycotts or joint refusals to do business with others.
While many of the antitrust laws apply only to "concerted" action or "agreements," an illegal agreement can be found even without a "handshake" or express words or writings indicating agreement. Tacit understandings, including responding to pressure, exerting pressure or doing "what is expected," can be sufficient. An implied agreement also may be inferred from actions or the result of those actions. For example, if two competitors discuss prices, and later adopt prices that are similar, a conspiracy to fix prices may be inferred, even though the competitors never explicitly "agreed" to do anything. Comments made in an informal environment may be used as proof of an agreement, even though the parties' subsequent actions actually were taken independently for sound business reasons. Thus, the safest rule of thumb is to avoid any discussions with competitors of topics, in association meetings or elsewhere, on which it would be illegal to agree. An informal verbal understanding could violate the antitrust laws. It is possible to break the law without a written contract or express agreement.
The antitrust laws apply to membership organizations such as NTCA just as they apply to any individual company or group of competitors. Members should always avoid conduct that would violate the antitrust laws in the ordinary course of business. As such, with rare exceptions that should be made only upon the advice of NTCA counsel, there should never be discussion of the following topics at any NTCA meeting (whether as part of a structured formal meeting of the association or as part of informal discussions among members at social functions or other events):
- any cooperative's or company's prices or pricing policies
- terms of sale, warranties or contract provisions
- division of customers, territories or locations
- restrictions on or reductions of a cooperative's or company's business activities
- specific R&D, sales or marketing plans
- any cooperative's or company's confidential product, product development or production strategies
- whether to purchase from certain suppliers or sell to certain customers
- prices paid to input sources
- complaints about individual firms or other actions that might tend to hinder a competitor from competing fully in any market (with some exceptions in the public policy context)
- data concerning fees, prices, production, sales, bids, costs, salaries, customer credit or other business practices, unless the data in question is exchanged and disclosed pursuant to a well-considered plan that has been approved by NTCA counsel
NTCA meeting participants have an obligation to terminate any discussion, seek legal counsel's advice or, if necessary, terminate any meeting if the discussion might be construed to raise any antitrust issues. If serious antitrust concerns are left unaddressed, the NTCA member representative should announce that he is leaving, explain why and walk out of the meeting.
NTCA is committed to complying fully with the antitrust laws.
Last Updated: August 2007