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Antitrust

At Technology Policy Institute Panel on AT&T/Time Warner, a Criticism of Trump and Law Enforcement

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WASHINGTON, June 25, 2018 – The former chairman of the Federal Trade Commission on Tuesday sharply criticized the president and his Justice Department’s antitrust division for promoting certain outcomes in recent antitrust actions.

At a Technology Policy Institute panel on the AT&T/Time Warner merger, antitrust experts split over whether the AT&T Time Warner merger was good news or bad news for the market, but largely agreed that political officials attempting to influence merger enforcement was detrimental to the public rule of law.

“It diminishes their credibility,” said William Kovacic, a former FTC chairman under President George W. Bush, and now a professor of law and policy at George Washington University Law School.

“Pointing the figures at enforcement officials saying you should block this, or the president of the United States saying this is what you should do,” he said.  “Do you know how that’s perceived outside the country? Badly.”

AT&T/Time Warner merger turned traditional politics on its head

AT&T proposed a $85 billion bid to merger with Time Warner in October 2016. Despite the fact that Republicans generally favor deregulatory policies and are therefore generally more receptive to mergers deals, Trump spoke out against the AT&T-Time Warner deal even in 2016, reportedly saying that “AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it’s too much concentration of power in the hands of too few.”

But Trump’s public statements about the merger largely focused on his criticism of a perceived liberal emphasis. That led to accusations that Trump was interfering in a merger analysis and investigation by his Justice Department.

On June 12, U.S District Judge Richard Leon approve the AT&T/Time Warner merger.

Kovacic said that if Leon had blocked the merger, the credibility of law enforcement could have been jeopardized.

“If the result of the case coincides with the urgings of the political official, then “the assumption is that you are the puppet of the elected official,” Kovacic said. “It’s really damaging.”

Christopher Yoo and Diana Moss weighed in on the decision, too

Another academic also praised Leon’s merger decision, praising the “fact-based” ruling for its “discipline” in certain issues, such as placing real evidence over theories of potential harm.

“We all know the law over the last 50 years has become much more hospitable to vertical integration,” said Christopher Yoo , a law professor at the University of Pennsylvania, referencing multiple vertical mergers in the past that he said gave the court real examples to draw “actual record evidence.”

But Diana Moss, president of the American Antitrust Institute, said that future defendants and prosecutors would likely not look towards the AT&T/Time Warner case as an example for multiple reasons.

It did not say anything about law or economics, Moss said, and it was “riddled with all sorts of inconsistencies, errors, and misunderstandings about antitrust.”

Moss, by contrast, criticized Judge Leon, calling his attitude “a stingy uncharitable treatment of plaintiff’s evidence” versus a “wholesale lovefest embracement of the defendant’s claims.”

“You could not see a more stark contrast between the treatment of plaintiff’s evidence and theories versus the defendant,” Moss said.

In regard to how the case will affect future vertical merger cases such as a possible acquisition of Fox by Comcast or Disney, Yoo said:

“The judge thinks they control the meaning of the case. It’s actually later judges.”

A link to the video of the panel is available here.

Antitrust

‘Time is Now’ for Separate Big Tech Regulatory Agency, Public Interest Group Says

‘We need to recognize that absolutely the time is now. It is neither too soon nor too late.’

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Photo of Harold Feld, senior vice president at Public Knowledge

WASHINGTON, June 21, 2022 – Public Knowledge, non-profit public interest group, further advocated Thursday support for the Digital Platform Commission Act introduced in the Senate in May that would create a new federal agency designed to regulate digital platforms on an ongoing basis.

“We need to recognize that absolutely the time is now. It is neither too soon nor too late,” said Harold Feld, senior vice president at Public Knowledge.

The DPCA, introduced by Senator Michael Bennet, D-CO., and Representative Peter Welch, D-VT., would, if adopted, create a new federal agency designed to “provide comprehensive, sector-specific regulation of digital platforms to protect consumers, promote competition, and defend the public interest.”

The independent body would conduct hearings, research and investigations all while promoting competition and establishing rules with appropriate penalties.

Public Knowledge primarily focuses on competition in the digital marketplace. It champions for open internet and has openly advocated for antitrust legislation that would limit Big Tech action in favor of fair competition in the digital marketspace.

Feld published a book in 2019 titled, “The Case for the Digital Platform Act: Breakups, Starfish Problems and Tech Regulation.” In it, Feld explains the need for a separate government agency to regulate digital platforms.

Digital regulation is new but has rapidly become critical to the economy, continued Feld. As such, it is necessary for the government to create a completely new agency in order to provide the proper oversight.

In the past, Congress empowered independent bodies with effective tools and expert teams when it lacked expertise to oversee complex sectors of the economy but there is no such body for digital platforms, said Feld.

“The reality is that [Congress] can’t keep up,” said Welch. This comes at a time when antitrust action continues to pile up in Congress, sparking debate across all sides of the issue.

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Antitrust

FTC Commissioner Concerned About Antitrust Impact on Already Rising Consumer Prices

Noah Phillips said Tuesday he wants the commission to think about the impact of antitrust rules on rising prices.

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Screenshot of Federal Trade Commissioner Noah Phillips

WASHINGTON, May 17, 2022 – Rising inflation should be a primary concern for the Federal Trade Commission when considering antitrust regulations on Big Tech, said Commissioner Noah Phillips Tuesday.

When considering laws, “the important thing is what impact it has on the consumer,” said Phillips. “We need to continue to guard like a hawk against conduct and against laws that have the effect of raising prices for consumers.”

Current record highs in the inflation rate, which means money is becoming less valuable as products become more expensive, has meant Washington must become sensitive to further price increases that could come out of such antitrust legislation, the commissioner said.

Phillips did not comment on how such movies would mean higher prices, but that signals, such as theHouse Judiciary Committee’s antitrust report two years ago, that reign in Big Tech companies and bring back enforcement of laws could mean higher prices. He raised concerns that recent policies are prohibiting competition rather than facilitating it.

This follows recent concerns that the American Innovation and Choice Online Act, currently awaiting Senate floor consideration, will inhibit America’s global competitiveness by weakening major American companies, thus impairing the American economy. That legislation would prohibit platform owners from giving preference to their products against third-party products.

This act is one of many currently under consideration at Congress, including Ending Platform Monopolies Act and Platform Competition and Opportunity Act.

Small businesses have worried that by enacting some legislation targeting Big Tech, they would be impacted because they rely on such platforms for success.

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Antitrust

Critics and Supporters Trade Views on American Innovation and Choice Online Act

American Innovation and Choice Online Act is intended to protect fair competition among businesses, but panelists differed on its impact.

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Photo of Amy Klobuchar from August 2019 by Gage Skidmore used with permission

WASHINGTON, May 10, 2022 – Experts differed on the effect that antitrust legislation targeting big tech companies allegedly engaging in discriminatory behavior would have on small businesses.

Small businesses “want Congress not to do anything that will screw up or weaken the services that they rely on for their business,” said Michael Petricone, senior vice present of the Consumer Technology Association, at a Protocol Live event on Thursday.

Petricone said that antitrust bill would encourage tech companies to relocate to other countries, harming the American economy. He said small businesses would be affected the most.

Instead, Petricone called for  a “smarter immigration policy” to allow foreign innovators access to American tech market, as well as the defeat of the antitrust legislation.

But other said that small businesses suffer from predatory behavior by big tech companies. “Companies can’t get their foot in the door when there is already self-preferencing,” said Awesta Sarkash, representative for Small Business Majority, an advocacy organization, adding that 80% of small businesses say they want antitrust laws to protect them.

Self-preferencing on online platforms is detrimental to the success of small businesses who rely on social media advertising for business, she said. The new antitrust proposals would ensure an level playing field and promote fair competition, she said.

The American Innovation and Choice Online Act would prohibit certain online platforms from unfairly preferencing products, limiting another business’ ability to operate on a platform, or discriminating against competing products and services.

The bill sponsored by Sen. Amy Klobuchar, D-Minn, was introduced to the Senate on May 2 and is awaiting Senate floor consideration.

The debate follows concerns raised by both democrats and republicans about America’s global competitiveness as the bill would weaken major American companies.

If passed, the bill will follow the European Union’s Digital Services Act which similarly sets accountability standards for online platforms, preventing potentially harmful content and behavior.

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