FTC Curious About Proposed Intel, STMicroelectronics Joint Flash Venture

Last May, Intel and STMicroelectronics - with the world's #6 and #5 market shares, respectively, in NAND flash memory - announced they would be joining together with venture capital firm Francisco Partners to create a new consumer-grade flash memory manufacturer, to be called Numonyx. This week, the US Federal Trade Commission is apparently not yet satisfied that Intel has adequately addressed its standard antitrust concerns. Today, Intel announced it received what is formally called a "second request" notice from the FTC.

While that's not nearly the same thing as being notified you're under investigation, a second request notice is typically bad news. It does not mean the FTC has any reason to suspect something in particular, or that it has any specific evidence of malfeasance or wrongdoing.

But it does mean the Commission is concerned enough to ask Intel for all the documents (all meaning "all") that may have a shred of relevance to the creation of this venture. That could be tens of thousands of pages of data, only a small portion of which may eventually be judged relevant.

This order will give Intel a fresh opportunity to test out its new document retention protocols, put in place after the last major request for company documents - in conjunction with the antitrust trial brought on by AMD - yielded some surprising omissions.

The trio of partners had plans to culminate their joint venture in the second half of this year, but this move by the FTC could postpone that. When American public companies enter into joint ventures, by law, they file disclosures of information to the FTC under a law called the Hart-Scott-Rodino Act. For that reason, the disclosure is commonly called an "HSR request," and the response to it an "HSR filing." After the filing is made, a company must give the FTC at least 30 days to address any antitrust concerns it may have, even if it ends up having none.

But if the FTC then issues a second request, the timer on that waiting period is suspended indefinitely until the company receiving the request turns over its information. According to a best practices memo published by the FTC (PDF available here), were all the documents the FTC requires to continue to be shipped on paper, as the law once required, they would typically fill 1,000 boxes. The subject of this request being Intel, we can assume that estimate to be a "floor."

Never one to miss out on the opportunity to ride a big wave at high tide, AMD jumped on this morning's news, circulating a letter sent yesterday by the president of the American Antitrust Institute to the FTC, urging it to "reclaim its traditional role as the leading antitrust enforcer" with regard to Intel.

Albert A. Foer's letter to FTC chairman Deborah Platt Majoras attempted to draw a distinction between being a monopoly player and a monopolist, by stating that a company could be the latter in the midst of a non-monopolized market.

"Intel is clearly a monopolist in the microprocessor manufacturing industry," Foer wrote, "which for practical purposes is a global duopoly whose control over an essential ingredient for high technology makes it a critical focal point for competition policy. There seems to be no compelling evidence that this industry is a natural monopoly, so it becomes especially important to be vigilant against strategies by the dominant firm that might eliminate or cripple its only rival's ability to gain substantial market share as a result of its hard-won and pro-competitive innovations and efficiency."

According to iSuppli estimates, STMicroelectronics and Intel each have a 2.3% share of global revenue from sales of NAND flash memory, while #1 Samsung has a 45.9% share. That fact could weigh in Intel's favor, as the FTC may rightly consider the flash market somewhat separate from the CPU market.

But the bad blood between the FTC and Intel extends back to June 1998, when the Commission filed formal charges against Intel for allegedly withholding critical IP from three major customers in retaliation for reduced purchases. That suit was settled the following year, though the Commission stated at that time it would continue to keep an eye open on Intel's business practices.