Competition In Interoperability Efforts Urged By FTC
By Christine Kern, contributing writer
Comments suggest that the Interoperability plan could lead to antitrust issues.
While the Federal Trade Commission is largely behind the efforts of the 10-year roadmap for interoperability issued by the HHS’s Office of the National Coordinator for Health Information Technology, it also has serious concerns about the state of competition as healthcare moves forward with the initiative. In comments posted on the FTC website , the Commission highlighted areas of concern regarding antitrust issues stating the plan for a common, coordinated governance process has the potential to foster innovation and competition but also could “unduly distort competition.”
The comment was submitted in response to the ONC’s request for comments on its draft Shared Nationwide Interoperability Roadmap. The comment noted the FTC has long supported interoperability, stating, “Increased interoperability, accomplished through standardization, has benefited competition in many industries.” However, the FTC recommended “that ONC consider how best to promote competition and innovation while taking steps to speed the adoption of interoperability standards in the marketplace.”
Further, the letter stats, “As a federal agency that enforces numerous privacy and data security laws, the FTC has extensive experience related to the privacy and security of consumer data, and appreciates the opportunity to provide comments on those issues as well.”
In its previous work, the FTC found that “when market forces are replaced by coordinated action between market participants, competition may be suppressed.” The FTC is thus encouraging the ONC to pay particular attention to several examples of anticompetitive conduct by industry members participating in collective standard setting and certification, based on the FTC’s experiences.
Among the actions identified as problematic were improper refusal of certification of a competitor’s product as standard compliant; improper refusal to adopt or amend a standard to include innovative products developed subsequent to the adoption of the standard; improper addition of members to an SSO to influence voting; and improper nondisclosure of the existence of patent rights relevant to technology being considered for inclusion into a standard.
The FTC also praised the ONC's plan to publish a common set of standards to be used by technology directors and to help coordinated governance efforts. Such standards are likely to foster competition in many circumstances, but the FTC also cautioned that unintended consequences may arise from those standards.
“Once a standard is adopted and implemented by industry, switching to alternative platforms can be difficult,” the FTC said. “In addition, when standards are collaboratively set by private parties, market-based competition between technologies vying for adoption is replaced by the collective action of market participants themselves.”
The FTC recommends that the ONC should further consider that standardization could limit competition between technologies, lock-in customers, reduce competition between standards and affect the method of selecting standards.