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Biden Administration Should Take a Trial-and-Error Approach to Antitrust, Say Brookings Panelists



Photo of Matt Perault testifying before Congress from Brown Political Review

December 1, 2020 — Experts recommended the incoming Biden administration take a trial-and-error approach to antitrust policy, during a Brookings Institute webinar on Tuesday.

The new administration should “use litigation as a tool for learning,” said Matt Perault, associate professor and director of the center on science and technology policy at Duke University.

The panelists urged President-elect Joe Biden to operate from a position of curiosity, and experiment with each of the tools at his disposal, utilizing everything from ‘regulatory sandboxes’ to executive orders.

Regulatory sandboxes, which provide controlled testing grounds for new legislative models, would supply the administration with an opportunity to gather data on the effects of measures taken, to ultimately inform future antitrust policy making. Executive orders would allow Biden to bypass what is sure to be a congested Congressional environment, as Republicans who are less thrilled about enforcing regulation, such as Senate Antitrust Subcommittee Chairman Mike Lee, R-Utah, remain in the assembly.

While the panelists held much advice for the Biden team, they agreed it was too early to tell how serious will be the administration’s stance on antitrust.

Does Biden have a mandate to act on antitrust issues?

“During the general campaign, except in areas related to labor, Biden did not mention antitrust,” said Leah Nylen, technology reporter for Politico Pro. Nylen said the first implications of the administration’s stance will be seen when the Federal Trade Commission chair and the assistant attorney general for antitrust are named.

Screenshot from the webinar

“There has traditionally been drastic under enforcement of Section Two of the Sherman Act,” said Avery Gardiner, general counsel and senior fellow for competition, data, and power at the Center for Democracy and Technology

Since the Microsoft case in the 1990s, only one case has been brought under Section 2 of the Act, which focuses on how companies abuse market power in ways that hurt consumers. Gardiner called for the new administration to “breath new life into Section Two” and go beyond antitrust definitions to think about competition more broadly.

Specific ‘do’s and don’ts’ for companies to follow 

The panelists called for the administration to focus on issues of transparency and data sharing.

Nylen suggested establishing a clear list of “do’s and don’ts” for companies to follow, and fining them when they fail to do so. “It is very important to make the people in charge of these company responsible,” she said. “It makes them care much more if the consequence of an action is a significant financial penalty.”

Gardiner further called for the practice of “closing remarks,” which has fallen out of favor at the FTC and the Department of Justice, to make a come back. “As a matter of increased transparency, we need that to come back,” she said. “If these agencies decide not to take an action, they must help the public understand why.”

Panelists further called for the creation of a White House Office on Competition Policy, which has been recommended by prominent Obama-era members of the FTC and the DOJ.

The White House Office could handle competition crises that fall outsider the jurisdiction of the FTC and the DOJ. For example, there is a need for more competition in the provision of broadband. “That’s not something the DOJ is going to handle,” said Gardiner, “that has to do with the Federal Communications Commission.”

Nicol Turner-Lee, director and senior fellow of governance studies at the Center for Technology Innovation, foresaw a drastic increase in the resources made available to the FTC and the DOJ, as they desperately need more funding for staffing. Turner-Lee also mentioned that Senator Kamala Harris may play a key role as the “dealmaker” between Silicon Valley companies and government officials.


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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Watchdogs Cannot Allow Another T-Mobile/Sprint Merger Under New Consolidation Guidelines, Event Hears

A Yale economics professor called on the FTC and DoJ to make it easier for them to pursue harmful mergers.



Screenshot of Yale economics professor Fiona Scott Morton

WASHINGTON, May 10, 2022 – A professor of economics said at an Information Technology and Innovation Foundation event late last month that the Justice Department and the Federal Trade Commission, during its recently announced review of mergers, should ‘plug those holes’ that previously allowed T-Mobile to acquire Sprint.

“I would say that one thing that we have accumulated a great deal of evidence on is that we are missing problematic mergers – that we are not [stopping] mergers that turn out to be harmful,” said Fiona Scott Morton, the Theodore Nierenberg Professor of Economics at Yale University School of Management, at the April 28 event, referring to the FTC’s failure to stop the Sprint/T Mobile merger and accused it of not appropriately protecting consumers.

“We are under enforcing as a general matter and we should therefore use this review of the merger guidelines to plug those holes,” she said, adding, “Are we catching nascent competitors that are going to prove to be important competitors in the future? It turns out we are not doing that,” she said.

She also responded to critics asserting that the FTC simply needs more money to effectively enforce their guidelines.

“Here is where I am going to play fiscal conservative,” she said. “How about we change the rules to make it easier for the government to bring these cases and then we do not need to spend $2 billion more, we could spend half a billion dollars more because there would be a significant deterrent effect and the government would have less work to do.”

Merger guidelines will give industry more certainty

In January, the FTC under Chair Lina Khan and the Justice Department’s antitrust division launched a public inquiry into modernizing merger guidelines established under previous leadership, on which Khan said was an attempt to “accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals.” Public comments were due on April 21.

Howard Shelanski, a partner at law firm Davis Polk, said at the ITIF event that FTC guidelines serve several purposes.

“One thing is certainly, just to let parties considering mergers to have an idea of what kind of scrutiny they are in for at the agencies,” he said.

He explained that the guidelines serve to inform stakeholders at which levels of industry concentration presumptions of harm will be triggered and what theories of harm the FTC will pursue.

“I think [guidelines] also let parties know how agencies will consider different kinds of defenses that [will] likely be raised,” Shelanski added. “So, the guidelines certainly serve a public purpose, but they also signal to courts about what lies behind the [FTC’s] thinking when it chooses to investigate and ultimately challenge a merger.”

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