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Antitrust

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

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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.

Antitrust

Federal Trade Commission Will Likely Not Be Able to Implement Competition Rules, Panelists Say

Panelists at TechFreedom event said judiciary will prevent the FTC from developing proposed antitrust policies.

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Photo of Peter Wallison from C-SPAN

WASHINGTON, October 22, 2021 –The Federal Trade Commission’s attempts to use rulemaking authority to issue antitrust policy governing technology companies will be struck down in federal courts, said panelists participating in a TechFreedom event on Thursday.

Recently formed conservative majorities on the Supreme Court and other panels have expressed opposition to the idea that the FTC possesses such rulemaking authority, these panelists said.

Hence, unlike past supreme courts, they current bench is likely to strike down FTC-issued binding rules.

Panelists highlighted former President Donald Trump appointees Brett Kavanaugh and Neil Gorsuch as justices who have opposed legal reasoning often used to permit FTC rulemaking.

Indeed, some panelists said early 20th Century legislation governing the FTC makes the case that the agency was created as an investigative body rather than a regulatory one.

Peter Wallison, senior fellow emeritus at the American Enterprise Institute, said that between five and six Supreme Court justices would ultimately vote to weaken precedents that allow for FTC rulemaking.

The Judiciary Committee of the House of Representatives recently advanced six antitrust bills that attempt to regulate the tech industry and foster greater competition, including the Ending Platform Monopolies Act and the Platform Competition and Opportunity Act.

FTC rules have taken on increased importance in terms of economic regulation due to the frequent inability of Congress to pass major legislation due to partisan gridlock. The FTC has proposed new procedures to ensure competition since Lina Khan was appointed as chair.

However, NERA Economic Consulting on Wednesday concluded that legislative proposals to regulate competition would impose costs of around $300 billion while impacting 13 additional American companies in the near term and more than 100 companies in the next decade.

Study author Christian Dippon contends that the legislation would limit American startup growth and international competitiveness while at the same time increasing costs for Americans.

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Antitrust

Public Interest Groups Urge Passage of Six Antitrust Bills Targeting Big Tech

Nearly 60 public interest groups signed a letter to House leaders to call a vote on six antitrust bills.

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WASHINGTON, September 2, 2021 – Nearly 60 public interest groups signed a letter Thursday urging the House party leaders to push for a vote on six antirust bills that cleared the House judiciary committee in June.

The goal of the six bills is to rein in the power of Big Tech through new antirust liability provisions, including new merger and acquisition review, measures to prevent anticompetitive activity, and providing government enforcers more power to break-up or separate big businesses. They include American Choice and Innovation Online Act, H.R. 3816, Platform Competition and Opportunity Act, H.R. 3826, Ending Platform Monopolies Act, H.R. 3825, Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, H.R. 3849, Merger Filing Fee Modernization Act, H.R. 3843, and State Antitrust Enforcement Venue Act, H.R. 3460.

The letter, which was directed at House Speaker Nancy Pelosi, D-California, and House Minority Leader Kevin McCarthy, R-California, were promoting a package of six bills that were the result of a two-year bipartisan investigation that included 10 hearings, featuring the testimony of the CEOs of the major tech companies, 240 interviews, 1.3 million documents and a 450-page report, the letter notes.

“We believe that these bills will bring urgently needed change and accountability to these companies and an industry that most Americans agree is already doing great harm to our democracy,” the letter said. Public Citizen was the first of the 58 groups on the letter.

America has a monopoly problem. Monopoly power lowers wages, reduces innovation and entrepreneurship, exacerbates income and regional inequality, undermines the free press and access to information, and perpetuates toxic systems of racial, gender, and class dominance,” the letter alleged.

“Big Tech monopolies are at the center of many of these problems,” it continued. “Reining in these companies is an essential first step to reverse the damage of concentrated corporate power throughout our economy. The bills that passed out of the House Judiciary Committee, with bipartisan support, do just that and it is imperative that they move forward in the House.”

List of signatories:

  • Public Citizen
  • Accountable Tech
  • Action Center on Race & the Economy
  • ALIGN: The Alliance for a Greater New York
  • Alliance for Pharmacy Compounding
  • American Booksellers Association
  • American Family Voices
  • American Independent Business Alliance
  • American Specialty Toy Retailing Association
  • Artist Rights Alliance
  • Athena
  • Cambridge Local First
  • Center for American Progress
  • Center for Digital Democracy
  • Center for Popular Democracy
  • Committee to Support the Antitrust Laws
  • Decode Democracy
  • Demos
  • Electronic Frontier Foundation
  • Friends of the Earth
  • Future of Music Coalition
  • Gig Workers Rising
  • Global Exchange
  • Indivisible Georgia Coalition
  • Indivisible Hawaii
  • Indivisible Ulster/NY19
  • Institute for Local Self-Reliance
  • International Brotherhood of Teamsters
  • Jobs With Justice
  • Kairos Action
  • Local First Arizona
  • Louisville Independent Business Alliance
  • Main Street Alliance
  • Mainers for Accountable Leadership
  • Media Alliance
  • Metropolitan Washington Council, AFL-CIO
  • National Employment Law Project
  • New York Communities For Change
  • New York Communities for Change
  • North American Hardware and Paint Association
  • Open Markets Institute
  • Our Revolution
  • PowerSwitch Action
  • Public Knowledge
  • Running Industry Association
  • Secure Elections Network
  • Service Employees International Union
  • Shop Local Raleigh/Greater Raleigh Merchants Association
  • SIMBA (Spokane Independent Metro Business Alliance)
  • Small Business Rising
  • Stand Up Nashville
  • StayLocal, an initiative of Urban Conservancy
  • Strategic Organizing Center
  • SumOfUs
  • The Democratic Coalition
  • UltraViolet
  • Venice Resistance
  • Warehouse workers for justice

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Antitrust

FTC Commissioner Phillips Warns About Shifting Direction of Agency

Noah Phillips voiced concern about the scope and practices of the Biden administration’s FTC.

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FTC Commissioner Noah Phillips

WASHINGTON, September 2, 2021 — Federal Trade Commissioner Noah Phillips said at a Hudson Institute webinar on Monday that he’s concerned about the direction the competition watchdog is moving toward considering recent events.

Phillips said the left-leaning voices in Washington and the appointment of Lina Khan to chair the agency has left him wondering about the legacy of the last 40 years of competition regulation in America – which have been hallmarked by the Hart-Scott-Rodino Antitrust Improvements Act of 1976. That legislation effectively gave the FTC the ability to review mergers and acquisitions before they were finalized, rather than afterward, which governed pre-legislation.

Under Biden-appointee Lina Khan, Phillips described how the FTC has done away with the process of early termination. In the past, this process made it unnecessary for every single company to provide advanced notice and advanced approval for mergers. “Historically, parties have been able to come to the agencies and say, ‘You’re not interested in this, can we just go ahead and finish our deal,’ and the agencies have said ‘yes.’”

He said this is no longer the case, and that every single merger must provide advanced notice and approval. “What we’re introducing is an inefficiency in the market for transactions that we have no interest in pursuing, just for the sake of it. I think that’s a problem,” he continued. “My concern is that it is making merger enforcement less effective, less efficient, and less fair.”

Phillips pointed to left-of-center and leftist voices in Congress, such as Rep. David Cicilline, D-New York, Sen. Elizabeth Warren, D-Massachusetts, and Rep. Alexandria Ocasio-Cortez, D-New York, who, at the outset of the pandemic, wanted to ban all acquisitions and mergers—regardless of their merit. He described this view as falling outside of mainstream perspectives, but noteworthy nonetheless.

“I don’t think that is what most people believe,” Phillips remarked. “I don’t think that is what Hart-Scott-Rodino envisions.”

This webinar took place only a couple of weeks after Phillips spoke at the Technology Policy Institute’s 2021 Aspen Forum, where he voiced similar concerns, stating that he feared that this new direction would make it more difficult for the FTC to hear cases that it should, and defended the commission’s record against critics who said it was lax under the Trump Administration.

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