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Antitrust

Data Policy is Central to Antitrust Litigation, Say TPI Experts

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Photo of Diana Moss, President of the American Antitrust Institute, in December 2015 by Alex Wong

January 20, 2021—When data gathering and usage are the lifeblood of the digital ecosystem, combating monopolies in the big tech industry will take more than just antitrust lawsuits, said industry experts during a Technology Policy Institute panel on Tuesday.

Antitrust litigation undervalues how much data drives tech businesses that operate in the digital space, said Diana Moss, president of the American Antitrust Institute.

The purpose of antitrust law is to protect consumers and workers and prevent the concentration of economic power in a few hands, she said, but the conversation needs to be about data—how it is gathered and used, and the implications those hold for consumers.

Breaking up a company or parts of a company may be one solution, but the government needs to also look at other options on the table that may better serve consumers, she said, adding that antitrust laws need to be paired with other policy tools, such as regulations that protect consumer privacy and free speech.

While antitrust laws target monopolies to preserve market competition, the failure of regulation in the tech sector isn’t necessarily due to policy regarding the formation of monopolies. Robert Crandall, adjunct senior fellow at the Institute, said a large part of the problem is that tech giants collect data with little or no cost. He further expressed concern that the digital space needs regulation to safeguard consumer welfare.

However, Michael Katz, professor emeritus at the University of California, disagreed with his fellow panelists, saying consumers should not be compensated for their data being collected and used, as they’re ‘receiving payment’ by using services like Google and Facebook for free.

Both Google and Facebook are currently facing recent antitrust suits filed by the Department of Justice and multiple state attorneys general. The lawsuits mark the first U.S. antitrust litigation in the technology industry since the case against Microsoft was resolved in 2001.

Reviewing the history of antitrust lawsuits, the panel said that applying precedence from earlier cases may not be useful because digital technology has evolved at such a rapid pace. For example, the 1982 case against AT&T, which resulted in the breakup of the company into smaller entities, forcing it to retain only long-distance services, isn’t necessarily still applicable, argued Randal Picker of University of Chicago Law School.

Picker said this is because AT&T already had both regulated and unregulated sections that were addressed, but companies operating in the digital space today like Google and Facebook are not regulated.

Although some technology has quickly changed, Katz said the idea that antitrust laws are outdated is exaggerated. The panel agreed that the results of the lawsuit against AT&T, and other litigation, were a net positive for the consumer.

Reporter Tim White studied communication and political science at the University of Utah, and previously worked on Capitol Hill for a member of Congress. A native of Salt Lake City, he escapes to the Pacific Northwest as often as he can. He is passionate about politics, Star Wars, and breakfast cereal.

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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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