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Journal of Technology Law & Policy

Document Type

Article

Abstract

This Article examines the Standards Development Organization Advancement Act (SDOAA) in detail, and asserts that Congress intended that standard-setting organizations seeking the SDOAA’s protection much include consumer representation in the standard-setting process. This should be understood as a victory for consumer-based antitrust theory, and should be taken seriously by courts and enforcement agencies going forward.

Part II provides a general background on standards and their antitrust treatment. Part III take a close look at the SDOAA’s provisions. Part IV discusses the consumer choice theory of antitrust commonly attributed to Professor Robert Lande and draws some conclusions about how the theory should be applied to collaborative standard setting. Part V examines the SDOAA’s legislative history and determines the Congress wanted the SDOAA’s protections to apply only to those organizations that included consumer representation. Finally, Part VI interprets the SDOAA’s provisions in light of Congress’s consumer choice concern, and offers practical suggestions for courts and enforcement agencies.

It is emphatically not the position of this Article that standards are bad or that all standard-setting organizations are cartels. Nor is the Article’s position that economic efficiency is an unimportant or silly goal for antitrust. Rather, this Article applauds Congress’s consideration of consumers in the standard-setting process in the belief that consumers are a necessary ingredient for the development of optimal standards.

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