Who’s On First? Congress Upset With Wasteful and Petty Antitrust Squabbles Between Justice and FTC

WASHINGTON, September 17, 2019 - Congress on Tuesday put a spotlight on federal antitrust investigators scrutinizing Google and Facebook, as members of the Senate Judiciary Committee honed in on whether the Justice Department and the Federal Trade Commission were wasting efforts by investigating the same companies.

The American people increasingly understand that competition is critical to their well-being, said Sen. Amy Klobuchar, D-Minn. However, despite the emphasis on competition, America still has a huge monopoly problem within technology, pharmaceutics and other industries.

There’s no reason for the FTC and DOJ to split up an investigation, said Sen. Michael Lee, R-Utah. Consumers deserve better than that. Splitting up an antitrust investigation, Lee said, is simply unacceptable.

FTC Chairman Joseph Simons said that his agency remains committed to marshaling its resources efficiently in order to protect consumers and promote competition, and he confirmed the agency’s continuing investigation of Facebook, against whom it secured a $5 billion privacy fine.

Simons also said that U.S. antitrust agencies promote convergence towards sound policy through bilateral engagement with foreign competition agencies.

The only company that the FTC said it could disclose that it’s investigating is Facebook, Simons said. Simons also added that the FTC has not interviewed anyone from Facebook regarding the investigation.

For his part, Justice Department Antitrust Division chief Makan Delrahim said that his agency doesn’t hesitate to investigate or litigate multibillion-dollar mergers.

Highlighting one antitrust power that rival agency FTC lacks, Delrahim said that criminal enforcement is one of the department's most powerful deterrents against price-fixing, bid rigging and market allocation.

Delrahim also said that he cannot deny that both the agencies’ time has been wasted on petty squabbles over the same company. However, it is often the case that the FTC and Justice are looking at different elements of the same companies.

With regard to Google, Delrahim said that he and the 50 state attorneys general who recently opened an antitrust investigation of the search engine giant have issued civil investigative demands. It’s important that the Justice Department and the states don’t “trip over each other” early in the investigation, he said.

Sen. Josh Hawley, R-Mo., said he was concerned about a pattern of lacking pro-competition enforcement.

The FTC and the Justice Department seem to have a “culture of paralysis,” he said. He questioned why Congress should continue wasting money for these enforcement efforts without first dealing with each agency’s respective issues.

Members also brought up the Trump Administration’s possible involvement with antitrust affairs. Sen. Patrick Leahy, D-Vt., mentioned how the White House ordered the antitrust division to block the merger of AT&T and Time Warner.

Could he confirm that no one from the White House directly or indirectly expressed their interests regarding this matter?, Leahy asked Delrahim. Delrahim said that his department received no input from the White House on any decision.

Sen. Richard Blumenthal, D-Conn., said that there appears to be a perception problem between antitrust enforcers and the companies that they go after. He said that after Facebook received a $5 billion dollar fine from the FTC, the company’s stocks increased the next day.

The fact that these agencies have come here without specifics, he said, reinforces the idea that federal antitrust enforcement is an “empty suit.”