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Is House Judiciary Report a Fix for Big Tech, or a One-Sided Political Document?



Screenshot from the Public Knowledge session praising the House Judiciary Antitrust Subcommittee report

October 17, 2020 – Responding to the landmark report of the House Judiciary Antitrust Committee on October 6 about how to deal with big tech companies, two panels addressing the report on October 9 reprised significantly different perspectives.

At an event hosted by Public Knowledge that featured the chairman of the subcommittee, the report dumping on Big Tech was warmly greeted by most panelists, with one notable dissent. Little surprise that the event was titled “Big Tech’s Big Competition Problem.”

At Competition Policy Internet’s “Future of Antitrust Event,” by contrast, seasoned antitrust experts expressed concern that the Democratic majority report was contradictory and not informed by history. Some even felt that it was attacking the companies – Google, Apple, Amazon and Facebook – because of their very success.

Rep. David Cicilline, D-R.I., the subcommittee chairman who participated in the Public Knowledge event, said that his report sets forward how competition can, in his view, be reintroduced to America’s technology marketplace. He said tech platforms are using their power to act as gatekeepers and crush competitors.

While he said the subcommittee doesn’t know all the appropriate remedies, they now believe that adding structure, updating and modernizing our antitrust statutes, properly staffing antitrust agencies, and pushing courts to correct antitrust policy are all viable strategies.

 A House report that is big, bold, bipartisan, and unafraid to tackle ‘bullying’

“This document is big, bold, and despite what the press would say, is bipartisan,” said Gigi Sohn, distinguished fellow at Georgetown Law Institute. She argued that rather than a bunch of talking points, the report was “real evidence,” and was shocked at the comprehensiveness of the recommendations, especially the “10 overturned Supreme Court precedents.”

Stacey Mitchell, co-director at the Institute for Local Self-Reliance, was “struck by the clarity of language,” describing the report as “long but very accessible and not afraid to use terms like ‘bullying’.”

“Congress is back!” shouted Alex Petros, policy council member at Public Knowledge, praising the report for “going in depth on the problems and offering in depth solutions.”

Sohn, Mitchell, and Petros agreed that the document was a sign that Congress was reasserting itself on the antitrust landscape.

Geoffrey Manne, president and founder of the International Center for Law and Economics, was the lone dissenter on the Public Knowledge praise-fest.

Manne disagreed that the report was comprehensive: “The plural of anecdote isn’t data.” Manne said that the report made no effort to look at how tech companies benefit, and instead assumed that all they did was cause harm. Problems emanating from the tech industry, he said, are at the margin.

Moreover, it is “extremely worrying” that the subcommittee report would go “right to enforcement,” especially when there was “no effort made to assess how those implementations might impose unintended consequences.”

“This is a political document,” Manne said, despite Republican support for a modicum of its aggressive antitrust proposals. Referring to issues around the tech industry’s power, he said, “We should be having these discussions; I just don’t think this report is going to engender them.”

Petros said that Reps. Andy Biggs, R-Ariz. and Doug Collins, R-Georgia, signed on the report “and they’re not the most bipartisan members of Congress.”

Among antitrust experts and former enforcers, a more measured and cautious tone

At the CPI event, by contrast, Andrew Gavil, senior of counsel at Crowell and Moring and antitrust law professor at Howard University, was among those who felt the report was not fully even-handed.

While the country should not be wed to current antitrust laws, “one of the strengths of U.S. antitrust law as been its ability to adapt.”

He also said that we shouldn’t “pay lip service to consumer choice” and then throw the baby out with the bathwater because the benefits of these companies haven’t been fully fleshed out yet.

In other words, there is more to the economy than Big Tech.

Tim Muris, senior counsel at Sidley and Austin and former chairman of the Federal Trade Commission, said that the report attacked companies based upon their success. Trying to structure antitrust regulations around social and political issues was misplaced.

Muris said he doesn’t object to strong antitrust action: However, if technology companies are going to be regulated, they need to all be looked at individually. In other words, not all big tech companies are successful and not all of them have a large marketshare.

Daniel Sokol, law professor at the University of Florida, said that was appropriate to revisited standards for anticompetitive mergers, and that such reviews are likely to become a lot stricter now.

Tad B. Lipsky, assistant professor and director of the Competition Advocacy Program at the Global Antitrust Institute, said as Manne had done on the Public Knowledge panel: The House report was vague and one-sided.


‘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.’



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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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.



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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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.



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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