Attorney General Eric Holder on Wednesday cautioned farmers and producers at a workshop in D.C. that Justice Department antitrust enforcement in the agriculture industry won’t fix all their troubles.

Holder said the DOJ has heard the concerns of producers and farmers at several previous workshops about competition in the agriculture industry. The Attorney General said he and his colleagues in the Barack Obama administration are working to bring “market transparency, market access and market fairness” to the industry.

“Of course, we know that antitrust enforcement actions will not solve every problem. We know that,” Holder said. “But because of the insights that you have provided … I believe that we will be better prepared to take the steps necessary to ensure a fair and competitive marketplace both for producers as well as consumers.”

The Antitrust Division under Assistant Attorney General Christine Varney has been active in taking on antitrust concerns in the agriculture industry.

Varney has been a constant presence at agriculture workshops across the country about competition issues. And her division has acted on antitrust concerns, taking on companies including dairy giant Dean Foods. The DOJ sued the company in January to undo its 2009 purchase of some milk processing plants in Wisconsin.

The DOJ and Agriculture Department, which hosted the workshop Wednesday, also created a task force in June to review ways to encourage competition in the agriculture industry. Holder said the group created a “simple and accessible online submission process” for members of the agriculture community to submit complaints and concerns about industry and market issues.

The Attorney General said farmers and producers should continue to share their comments with the DOJ.

“I also want to be clear about something: the critical channel of communication that we have opened this past year … will remain open,” Holder said. “And the Departments of Justice and Agriculture will continue working in close coordination to address your concerns and to ensure fairness and opportunity for America’s farmers, producers and agriculture industry.”

The Senate Judiciary Committee hearing Wednesday morning with Attorney General Eric Holder offered a few interesting tidbits for Antitrust Division watchers.

Sen. Herb Kohl (D-Wis.), who chairs the panel’s antitrust subcommittee, gave the new administration high marks. “As our economy rebounds, the Antitrust Division’s revitalized enforcement has fostered a competitive marketplace that encourages innovation and economic development while ensuring consumers have access to high quality goods at the best prices,” he said.

Kohl’s colleague from Wisconsin, Democratic Sen. Russ Feingold, also complimented Holder and Assistant Attorney General Christine Varney on the Justice Department’s antitrust enforcement efforts, while taking shots at Bush-era regulators: “Under your and her leadership, the Antitrust Division of the department has made it clear that after many years of neglect the enforcement of antitrust laws is a priority for the department.”

Feingold and Sen. Chuck Grassley (R-Iowa) also highlighted their support for the series of workshops this year that are being conducted by the departments of Justice and Agriculture on competition issues in agriculture. The agencies hosted one session in Iowa last month, and another is scheduled in Wisconsin in June.

“I’m especially grateful for the department’s focus on agriculture issues in partnership with the [Department of Agriculture] and was very pleased to hear that the department will be holding … a workshop in Wisconsin,â€� Feingold said.

In a repeat of the fireworks from a February panel hearing on the pending merger between Comcast and NBC, Sen. Al Franken (D-Minn.) used his time with the AG to discuss his concerns about the deal.

“I’m concerned because I see the potential here for the consolidation of media, in a way that is to me, very frightening,� said Franken, who used to work for NBC as a star on Saturday Night Live. He said he was worried the merger might prompt further consolidation in the industry and speculated that Verizon or AT&T might be forced to acquire their own broadcast networks.

Might the merger lead to a situation where “five companies are going to be controlling all the information that we get?” Franken asked.

Franken also relayed a conversation he had with NBC chief Jeff Zucker, who told the senator the merger would be good for NBC. “That’s not the issue,” Franken told Holder. “The question is: is it good for the American people?â€�

True to form, Holder declined to comment other than to say: “I can assure you that the department is conducting a thorough investigation of that proposed transaction.�

“If a determination were made that Comcast’s acquisition of NBC would substantially impact competition in violation of the antitrust laws, we are committed to taking  a very serious enforcement action,” Holder added.

When Franken expressed some displeasure with regulator-imposed conditions on mergers, arguing that they were usually hard to enforce and “inevitably expire” after a few years, Holder said: “I think we can make those conditions that are enforceable. It involves having … access to experts in the field.”

Holder also agreed to Franken’s request for a meeting between his staff and DOJ lawyers who are reviewing the deal.

In what appeared to be a slip up, Franken at one point referred to Christine Varney as Mr. Varney.

Oh, and we found out that Holder is a Comcast subscriber.

With reporting by Andrew Ramonas.

When one door closes another (possibly) opens.

Last week the D.C. Circuit Court of Appeals rejected the Federal Communications Commission’s attempt to police Internet service. The panel ruled that the agency overstepped its authority when it told Comcast not to block access to some Web traffic.

The ruling was a blow to advocates of the wonkish “net neutrality” — the idea that Internet access providers should treat all content the same.

For the moment, the FCC is considering its next step. The agency lost in the D.C. Circuit because of its previous move to classify broadband as an information service. The agency could reclassify Internet access as a transport service, which would allow the agency to regulate the industry in the same way it does telephone lines.

But the Federal Trade Commission also has been itching for a chance to test net neutrality ideas against its regulatory framework. In 2007, it issued a report that made the case for its jurisdiction over broadband providers. But the agency has not made much headway, in part because it is barred from regulating transport services, known as common carriers.

The appellate ruling last week made clear that, under the current framework, broadband is not considered a transport service — an opportunity that might allow the FTC to try its hand at regulating broadband.

“The FTC has been precluded by statute from common carriers, but if broadband is not a Title II service, then it’s not common carriage,”  said Glenn Manishin, an antitrust and technology policy partner at Duane Morris LLP. ”That gives the FTC the opening they were looking for.”

Under current federal law, the FTC has the authority to go after both unfair methods of competition and unfair or deceptive practices. Both those mandates could provide an opening for the FTC to look into net neutrality.

For example, the FTC could require a broadband provider to disclose how it manages its network and what speeds it offers. Both ideas are part of the FCC’s plan to bring high-speed broadband to every American home — aspects of the plan now in doubt because of last week’s ruling.

On the competition front, the FTC might have an easier case to bring than antitrust regulators at the Justice Department. While DOJ authority is limited to traditional antitrust theories, the FTC has the more broad “unfair methods of competition” mandate.

If a broadband provider owned some video content and slowed down access to other video content or sped up access to its own, Manishin said, it is easier to characterize that as unfair competition than to bring a traditional antitrust case.

Current and former government officials said a FTC move to regulate net neutrality would make sense given the FTC’s broader statute and the agency’s aggressive approach to its jurisdiction under Chairman Jon Leibowitz’s leadership.

The agency brought its case against chip-maker Intel, for example, under novel legal theories that seek to expand the FTC’s authority. The FTC usually brings antitrust cases based on the settled law of the Sherman and Clayton Acts. But it has independent authority under the FTC Act, and the Intel case uses that independent authority.

Since the recent approach has yet to be tested by the courts, any push into the broadband market might first have to cross a few hurdles.

Still the FTC could have a role to play, said Joel Kelsey, a policy analyst at Consumers Union, if it could prove that a broadband provider was discriminating against some traffic with a clear intent to foreclose or limit potential competition.

The agency could go after providers who were using the power of the Internet to protect legacy businesses and shut out Web-based products like Skype, Hulu, and Netflix that compete with traditional cable and phone subscriptions.

But when Comcast interfered with user access that led to the D.C. Circuit ruling, the company argued it was just managing traffic. For the government to prove that a similar case involved a competitive move rather than a business decision would be difficult.

“There may be some things that the FTC or the Justice Department could do by way of antitrust enforcement,” said Donald Russell, a DOJ antitrust veteran who is now a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. “But the kinds of practices that often come up under the guise of net neutrality would rarely be a violation of the antitrust laws.”

“Conduct in terms of how you run your business or price your services and what kind of terms you offer, unilateral practices get wide leeway under antitrust law,” he said. “I think in order to achieve the broad objectives of people advocating net neutrality, you have to have congressional action or reclassification.”

“What the FTC could do is pretty minimal,” he added.

Google’s proposed purchase of mobile advertising platform AdMob now faces political heat.

Sen. Herb Kohl (D-Wis.) wrote a letter Tuesday to his former staff counsel, Federal Trade Commission Chairman Jon Leibowitz, urging the agency to “carefully” review the merger, which would combine Google’s growing presence in mobile advertising with the largest company that places ads on smart phones.

Leibowitz worked for Kohl from 1989-2000, including a stint as the Democratic staff director on the Senate Judiciary Committee’s antitrust subcommittee when Kohl was the ranking Democrat on the panel. Kohl now chairs that subcommittee.

“Without reaching any conclusion as to whether the Google/AdMob transaction would create such dominance or would cause any substantial harm to competition, I believe it is essential that the FTC scrutinize this deal very closely,” Kohl wrote.

Critics of the deal have complained Google could use its muscle in the online search market to become the dominant player in mobile advertising.

Google has responded that the market has a dozen players, is still developing and is too new for the deal to raise major regulatory issues.

“While we’re continuing to work with the FTC, there is overwhelming evidence that mobile advertising will remain competitive after this deal closes,” Google spokesman Adam Kovacevich said in a statement. “Mobile app advertising is less than two years old, there are more than a dozen mobile ad networks, app developers and advertisers routinely use multiple networks”.

Apple, he pointed out, is also getting into mobile advertising.

The FTC has reportedly asked some parties to sign sworn statements, indicating it has some concerns about the deal.

The review is important, Kohl said, because of the role mobile phones will play in the future. ”Smart phones are a uniquely powerful method for advertisers to reach consumers, because most consumers with smart phones carry them most of the day, and frequently use them to access and search the Internet,” Kohl said.

More Internet searches will be conducted on a smart phone than on the computer in the next five to 10 years, and the smart phone will become a dominant advertising medium, Kohl said, citing industry experts.

“Allowing any one firm to dominate this market could result in higher prices for mobile advertising on the Internet and with respect to smart phone applications, and also could result in lower revenues realized by applications developers,” Kohl said.

Kohl, who chairs the Senate Judiciary Committee’s antitrust subcommittee, also asked the FTC to assess the privacy concerns raised by combining the vast data troves of both companies. “The FTC should assure itself that the deal, if approved, will have sufficient safeguards to protect consumers’ privacy,” Kohl said.

While the agency also handles privacy issues as a function of its consumer protection mandate, it does not usually take privacy into account when reviewing a merger.

Kohl raised similar concerns about Google’s 2007 purchase of online ad platform DoubleClick. The FTC approved that deal without conditions.

Updated at 3:15 to include comment from Google.

Appearing at an industry panel discussion earlier this week, Federal Trade Commissioner J. Thomas Rosch said two cases on the Supreme Court docket this term that did not involve antitrust laws could have broad implications for antitrust attorneys.

Speaking at a roundtable sponsored by the Association of Corporate Counsel, Rosch highlighted a securities case — Jones v. Harris – and an intellectual property case — Bilski v. Kappos — as two cases the competition bar should pay attention to.

Jones v. Harris

The High Court handed down a ruling on Tuesday in the securities case, which involved mutual fund fees. Rosch focused on the case because two proponents of the free-market oriented Chicago School who reviewed the case came down on different sides of the question of whether the market could adequately police the fees. ”Their disagreement reflects, to some extent, a deeper debate about the role of economic thinking in the law,” Rosch said.

Courts have long used a standard that asks if the compensation falls within a range that could be reasonably negotiated in order to assess whether a fee paid to an investment adviser was too high. Investors in the Jones case argued their fund was paying an adviser too much, but the district court used the old standard and dismissed the case.

In his 7th Circuit Court of Appeals opinion, Chief Judge Frank Easterbrook affirmed the ruling but threw out the old test and advocated a more relaxed standard that relied on the market except in cases of fraud. The mutual fund industry is a highly competitive one, the panel found.

The 7th Circuit declined to hear the case again before the full panel, but in a dissent Judge Richard Posner urged his colleagues to hear the case and was skeptical that investors would be able to avoid funds that charge excessive fees. He pointed to studies that showed  fund directors had weak incentives to rein-in adviser fees.

In a unanimous decision authored by Justice Samuel Alito, the Supreme Court returned to the older strict standard and “turned its back” on Easterbrook’s “pure Chicago Schoolâ€� decision, Rosch said. The decision was significant, he said, both because the Supreme Court ruled in favor of the plaintiff, and because it didn’t express concerns about the court’s role in overseeing competition, as it has in some recent antitrust decisions.

Bilski v. Kappos

The intellectual property case, Bilski v. Kappos, asks what types of innovations deserve patent protection. It was brought by inventors who tried, and failed, to patent a mathematical formula designed to hedge risk.

The inventors sought a controversial “business patent” or patents on methods of doing business.  They appealed the rejection to the Federal Circuit, which upheld the denial and settled on a test to determine whether a process could be patented.

A patent is a legal monopoly, so the reach of some patents is of interest to the antitrust bar. The Justices, Rosch said, didn’t seem to favor a broader approach. Justice Stephen Breyer, for example, offered:  “I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. . . . That you are going to say is patentable, too?”

American Needle v. NFL

The court is also expected to rule soon on one case that does involve federal antitrust laws, American Needle v. NFL, which will assess how antitrust laws apply to the National Football League. It will be the 11th antitrust decision in the last six terms, Rosch pointed out, which is an active antitrust docket for the high court.

The NFL has licensed its merchandise as one league for decades to several manufacturers, but decided to enter an exclusive arrangement with Reebok in 2000. American Needle, a rival apparel maker who lost out, sued the NFL on antitrust grounds and said each team should be required to negotiate a separate contract.

The NFL based its defense on a Supreme Court precedent that found a parent corporation and its wholly-owned subsidiaries were one unit for the purposes of antitrust laws. The district court and the 7th Circuit agreed, but both parties asked the Supreme Court to take a look.

The Justice Department and the FTC submitted a joint brief that took a middle ground and said the league sometimes but not always acted as a “single entity” in its operations. Each action should be considered on a case-by-case basis to determine if it was anti-competitive, the agencies argued. It was the first joint brief in “many years” that supported a plaintiff, Rosch pointed out.

“My reading of the tea leaves is that the [Supreme] Court is likely to reverse the 7th Circuit and remand with instructions to apply a fact-intensive test,” Rosch said.

In a letter released Thursday, the Justice Department signed off The Associated Press’ proposed digital database to match companies that report the news with the Web sites that distribute it.

The AP, which creates content for 1,700 newspapers and 5,000 television and radio stations, is testing out a service to help Internet news sites license content. Content owners would be able to register and list stories, and later videos, and could offer individual or blanket licenses for their material. The DOJ reviewed the proposed plan, which is slated for an official launch in July, at the request of the news service.

In describing the plan, the Justice Department noted that participants in the database would not be barred from using other registries or from placing content through means outside the exchange. Each content owner would be able to set its own terms.

The AP also will put a firewall in place, according to the letter, so neither the content owners nor the users would be able to access each other’s proprietary data about revenue and traffic. The AP also said it wouldn’t use that information itself.

Businesses often ask antitrust regulators to review proposed ventures that involve competitors working with each other. When airlines started using centralized computer reservations, for example, some critics worried the airlines would be able to signal future prices to rivals and tacitly coordinate industry-wide increases.

The Associated Press proposal is unlikely to violate antitrust laws, the Justice Department’s antitrust chief Christine Varney said in the letter, and might have pro-competitive benefits. The database may make it cheaper for Web sites to get reprint licenses, for example, and it might provide better tracking data to the content owners.

“The AP’s registry may provide a new, efficient way for news content users to identify applicable terms of use and purchase licenses for Internet news content,� Varney said in a press release announcing the letter.  “The registry may benefit both news originators and content users by reducing the transaction costs associated with securing licenses for Internet use.�

“We’re very pleased, and particularly appreciative how quickly the staff at the Department of Justice was able to look at our requesting letter and to work with us,” said Jonathan Gleklen, a partner at Arnold & Porter who represented the Associated Press. The review took around four months, he said.

In February, the Antitrust Division approved another media coordination proposal by MyWire Inc. That company, which owns a technology to organize and distribute news online, had sought approval of a plan for a news aggregation service.

Arnold & Porter has previously represented other media clients, including the Newspaper Association of America.

A decade of private antitrust lawsuits for Microsoft Corp. came to a quiet end on Tuesday when a federal judge in Maryland granted Microsoft’s motion for summary judgment and dismissed the last pending suit against the software giant that followed the government’s landmark monopolization case.

David Tulchin (Sullivan & Cromwell)

Around 200 cases followed the 1999 ruling in U.S. v Microsoft that found that Microsoft used its dominance in the operating system market to crush potential rivals.

Microsoft’s general in the battle against the private suits, Sullivan & Cromwell’s David Tulchin, sounded a note of relief as he traveled back to New York from a Philadelphia hearing Wednesday morning.

“It has been a long time,” Tulchin said. “Sometimes the legal system moves a little more slowly than we would like, but all things good and bad must come to an end, and it’s time for this to be over.”

Tulchin reminisced about the good: a half-dozen arguments in the 4th Circuit Court of Appeals, another half dozen in state supreme courts, two state court trials, visits to 40 states and a goldmine of unused frequent flier miles.

He also reflected on the not so good: “I thought we’d probably be done with it within five or so years,” he said.

The suit dismissed on Tuesday was brought by software maker Novell Inc. in November 2004 and involved the word-processing program WordPerfect. Novell acquired the software in 1994 and sold it, at a significant loss, two years later.

In its complaint, Novell accused Microsoft of using its monopoly in the operating system market to hurt WordPerfect and promote its own word-processing software, Microsoft Word. One Microsoft executive told investor Warren Buffet, according to the ruling, “[i]f we own the key ‘franchises’ built on top of the operating system, we dramatically widen the ‘moat’ that protects the operating system”.

In dismissing the case, Judge J. Frederick Motz, of the U.S. District Court for Maryland, said when Novell sold WordPerfect and other products, it also sold the right to any claims on them.

The case took so long to resolve, in part because it was filed several years after most of the others. In 2004, Microsoft and Novell announced a $536 million settlement to resolve some disputes, but couldn’t come to an agreement on the WordPerfect claims.

In his ruling, Motz said: “I find that Novell no longer owns the claims and may not pursue them here.” He also explained how he would rule on the merits of the claims if the 4th Circuit overturned his decision. Of the two remaining counts, one would survive Microsoft’s motion for summary judgment while the other would not, he said.

Novell lawyer R. Bruce Holcomb who is a partner at his own firm Adams Holcomb, did not immediately return a call seeking comment, but did tell Main Justice in an interview last week: ”It has been going on for years, somebody has to be the last.”

That company was asking for hundreds of millions in damages, Tulchin said. After a seven-week trial, the jury returned a verdict of $1 and sided with Microsoft on all the antitrust claims. “That was a great victory,” he said.

Tulchin said that he has visited every state but one — Arkansas — thanks in large part to his work for Microsoft.

“I have to go to Memphis in a month,” he said. “I will walk across the bridge” to Arkansas.

The state of Wisconsin also announced on Tuesday it was collecting $80 million to purchase technology for low-income schools as part of its own 2006 settlement with Microsoft that resolved a related antitrust lawsuit.

The Justice Department said Monday morning it has cleared networking giant Cisco Systems Inc.’s  bid to acquire video conferencing provider Tandberg ASA. In a statement, the agency emphasized it had “cooperated closely” with its European counterparts in reviewing the deal, a sign of a smoother relationship between Brussels and Washington D.C., after the two agencies clashed on a similar deal earlier this year.

Cisco, Tandberg, and other industry participants signed waivers for the Antitrust Division and the European Commission’s Directorate General for Competition to share information and coordinate on potential remedies to ensure interoperability between Cisco’s new teleconferencing products and those of other companies. The Justice Department said it had taken those commitments into account, along with other factors, in reaching its determination not to challenge the deal.

“This investigation was a model of international cooperation,” Antitrust chief Christine Varney said in a statement. “The parties should be commended for making every effort to facilitate the close working relationship between the Department of Justice and the European Commission.”

The two agencies clashed last year in reviewing database software provider Oracle Corp.’s $7.4 billion purchase of Sun Microsystems Inc. The Justice Department OK’d the deal last summer, but European Union officials issued a set of objections to the sale in early November.

The DOJ responded to those objections by saying the sale did not raise major anti-competitive concerns and nudged the E.U. to clear the transaction.  Brussels responded with visible annoyance, but eventually cleared the deal.

Then in November, the Justice Department hired E.U. antitrust expert Rachel Brandenburger as a new adviser on international matters. A better working relationship between the two agencies seemed to follow. When the DOJ signed off on Microsoft Corp.’s advertising pact with Yahoo! Inc. in February, for example, it waited until European regulators had announced a decision.

On the Cisco deal, the DOJ said it was satisfied with the commitments the company made to Brussels. Cisco promised that its teleconferencing products could operate with products from other companies. Cisco had already entered the videoconferencing business when it announced its $3 billion purchase of the Norwegian company last October. The E.U. announced its decision earlier today.

“The commitments are designed to foster the development of open operating standards,” the DOJ said in its statement. “The department views those commitments as a positive development that likely will enhance competition among producers of telepresence systems.”

Cisco could not immediately be reached for comment on how the trans-oceanic review was handled.

Mississippi Lawmaker Asks Holder to Block FEMA Trailer Sales on Antitrust Grounds

House Homeland Security Committee Chairman Bennie Thompson from Mississippi asked Attorney General Eric Holder on Thursday to stop the government from selling thousands of FEMA trailers that were intended to house refugees from the 2005 Hurricanes Katrina and Rita, and argued the sale raised antitrust concerns.

Some of the units posed health risks because they were contaminated with formaldehyde, and were never distributed, Thompson said. The industry expects that it will sell 203,500 trailers this year, he said, and the government has around 103,000 to get rid of. “We find it difficult to believe that dumping over 100,000 used [units]…will not create a substantial and negative effect on the price and supply of trailers,” he said.

Justice Department spokesman Charles Miller told the Associated Press that Holder’s office would respond to Thompson’s letter.

Read the letter here, and the Associated Press story here.

Varney Defends Ticketmaster Decision at SXSW

Executives from the now-combined ticketing and concert promotion behemoth Live Nation Entertainment didn’t show up at a popular music and tech festival in Austin this week.  But Assistant Attorney General for Antitrust Christine Varney was on hand yesterday at the South by Southwest conference, known as SXSW, to defend her decision to let the deal go through — with conditions.

Varney was “on the defensive” with a “contentious” audience skeptical of the merger, the L.A. Times said. “I know it’s not a satisfying answer,” she said, according to the paper’s music blog. “We are constrained by the law. The overlap that we found was in ticketing. That’s why the remedy rests in ticketing.”

The paper also reported that Varney urged the audience to tell the Justice Department if the behavioral remedies were working. “We’re talking to bands, managers, promoters, a lot of people, understanding how our proposed consent decree is working, not working,” Varney said. “But the only way we know if it’s working is to hear from you.”

Read that story here.

‘Kabletown’ Swallows NBC

The NBC sitcom 30 Rock continued its spoof on Comcast Corp.’s bid to takeover NBC Universal on Thursday, with a fictional Philadelphia-based company called “Kabletown” as a stand-in for Comcast. Last week’s episode debuted the cable giant as a “fine and generous company.” This Thursday night’s episode wasn’t quite as charitable. Kabletown, it turned out, gets 91 percent of its profits from pay-per-view pornography and was buying NBC as a tax write-off.

Watch the episode here.