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Lina Khan Pitches Ideas For Regulating Big Tech In Nomination Hearing

Senate Commerce Committee considers nominations for Lina Khan, Bill Nelson and Leslie Kiernan.

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Screenshot of Lina Khan at Senate hearing

April 21, 2021 – The Senate Commerce, Science and Transportation Committee held a hearing Wednesday to consider the nominations of Lina Khan as a commissioner at the Federal Trade Commission, former Sen. Bill Nelson for administrator of NASA and Leslie Kiernan as general counsel for the Department of Commerce.

Khan’s nomination signals a strong stance on antitrust, especially in the tech industry, for the Biden administration, as Khan has been a vocal critic of the concentration of market power for companies like Google, Facebook and Amazon. Previous to her current position as a professor at Columbia Law School, she worked on the House antitrust subcommittee in publishing a report against anti-competitive behavior in big tech, and authored the article “Amazon’s Antitrust Paradox.”

“Given the interest of this committee, from left to right, from liberal to conservative, in taking on antitrust and privacy issues, I can’t think of a more qualified person to be considered for the FTC,” said Sen. Amy Klobuchar, D-Minnesota, in introducing Khan to the committee hearing.

“Lina Khan is, in short, an out-of-the-box thinker, a pioneer in competition in policy, who is already a noted expert in her field. Her deep understanding of how markets influence our lives, and how the law should function, is exactly what we need at the FTC.”

In response to various questions from senators on the committee, Khan spoke on her experience as a journalist and other work that allowed her to document competition and abusive business practices, she said.

“This work taught me the importance of fair competition and the critical role that the antitrust laws play in encouraging business dynamism and promoting widespread prosperity,” she said.

In response to a question about regulating social media companies, Khan identified two options. “One is, enforcing competition laws and ensuring that these markets are competitive,” she said. “The other is, if we instead recognize that perhaps there are certain economies of scale, network externalities, that instead are going to lead these markets to stay dominated by a very few number of companies, then we need to apply a different set of rules.”

Agencies need to be on same information wavelength

She also spoke on what she called “asymmetries” of information and market power between tech companies and federal agencies and regulators. The FTC needs to use their information collection capacity to mitigate some of these information gaps, she said. Social media has black boxes and proprietary algorithms that can sometimes make it difficult to know what is going on, she said.

Khan responded to a question about what she would have done differently to handle the tech mergers during the Obama administration. Evidence has come to light since those mergers happened that suggest missed opportunities the FTC could have taken, she said. The decisions made then was partly due to information asymmetries, and also because of the assumption that digital markets move really quickly, so the market would regulate itself with new entrants and technology, she said.

But we now know these markets have significant network externalities and other reinforcing advantages of data in ways that make them more “sticky,” and we know now to be more vigilant, she said.

On conflicts of interest

She also responded to a question about possible conflicts of interest as a FTC commissioner given her previous work on antitrust in the tech industry, saying that “I would be approaching these issues with an eye to the underlying facts and empirics and following the evidence where it goes.”

On a specific question for recusing herself, she said there are “a set of recusals required in federal ethics laws where you are making categorical determinations before taking office. With regards to prejudgment, those are really resolved on a case-by-case basis.”

For Nelson’s nomination as the NASA administrator, who was a former senator that served on that committee, he received universal applause across both political aisles. “Everybody here knows Senator Nelson, you know his character, you know his integrity, you served alongside him, so that is not a question that needs to be answered at all,” said Sen. Marco Rubio, R-Florida. “I think this is an inspired choice, I can’t think of a better American alive to serve in this role.”

The committee did not vote on the nominations, setting that action for a later date.

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.

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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Big Tech

Small Business Owners Call for FTC, DOJ to Institute Antitrust Measures Against Big Tech

Small business owners vocalized concerns at a forum hosted by the FTC and the DoJ.

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Screenshot of FTC Chairwoman Lina Khan

WASHINGTON, May 17, 2022 – Small business owners and employees urged the Federal Trade Commission last week to take further action against big tech company mergers that dominate their markets.

With Washington’s focus on scrutinizing potential mergers, small business members that appeared on a forum Thursday hosted by the FTC and Justice Department pushed for antitrust measures against market monopolization that they said undermines small business success. Jonathan Kanter, the assistant attorney general for the antitrust Division, called this a “new generation of digital giants.”

Saagar Enjeti, host of a media podcast, expressed his inability to participate in a truly free and open internet due to the influence of big tech companies, in which he said there has been a rash of misinformation on the coronavirus, the 2020 presidential election, and the Russian invasion of Ukraine.

Bradley Tusk, a venture capitalist who invests in tech startups, said he wants the FTC to have “more scrutiny” on big tech mergers. “The FTC should aggressively do everything in its power to do the job itself,” said Tusk.

Erin Wade agreed for more scrutiny on monopolies in which DoorDash and UberEats compete. As a restaurant owner, she said delivery mega platforms are harming restaurant profits and disrupting their business via tactics including underpricing their delivery fees and “bund[ling] orders so badly it damages customer relations.

“Small businesses are central to the American economy and American democracy,” Wade said during the event, pushing for the FTC to place more scrutiny on big tech companies.

According to FTC Chairwoman Lina Khan, as several digital platforms continue to control the market today, anti-trust agencies should do what they can to encourage competition and provide checks on these big tech companies.

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Section 230

Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform

Parler’s Amy Peikoff said she wishes Twitter can follow in her social media company’s footsteps.

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Screenshot of Amy Peikoff

WASHINGTON, May 16, 2022 – A representative from a growing conservative social media platform said last week that she hopes Twitter, under new leadership, will emerge as a “sustainable” platform for free speech.

Amy Peikoff, chief policy officer of social media platform Parler, said as much during a Broadband Breakfast Live Online event Wednesday, in which she wondered about the implications of platforms banning accounts for views deemed controversial.

The social media world has been captivated by the lingering possibility that SpaceX and Tesla CEO Elon Musk could buy Twitter, which the billionaire has criticized for making decisions he said infringe on free speech.

Before Musk’s decision to go in on the company, Parler saw a surge in member sign-ups after former President Donald Trump was banned from Twitter for comments he made that the platform saw as encouraging the Capitol riots on January 6, 2021, a move Peikoff criticized. (Trump also criticized the move.)

Peikoff said she believes Twitter should be a free speech platform just like Parler and hopes for “sustainable” change with Musk’s promise.

“At Parler, we expect you to think for yourself and curate your own feed,” Peikoff told Broadband Breakfast Editor and Publisher Drew Clark. “The difference between Twitter and Parler is that on Parler the content is controlled by individuals; Twitter takes it upon itself to moderate by itself.”

She recommended “tools in the hands of the individual users to reward productive discourse and exercise freedom of association.”

Peikoff criticized Twitter for permanently banning Donald Trump following the insurrection at the U.S. Capitol on January 6, and recounted the struggle Parler had in obtaining access to hosting services on AWS, Amazon’s web services platform.

Screenshot of Amy Peikoff

While she defended the role of Section 230 of the Telecom Act for Parler and others, Peikoff criticized what she described as Twitter’s collusion with the government. Section 230 provides immunity from civil suits for comments posted by others on a social media network.

For example, Peikoff cited a July 2021 statement by former White House Press Secretary Jen Psaki raising concerns with “misinformation” on social media. When Twitter takes action to stifle anti-vaccination speech at the behest of the White House, that crosses the line into a form of censorship by social media giants that is, in effect, a form of “state action.”

Conservatives censored by Twitter or other social media networks that are undertaking such “state action” are wrongfully being deprived of their First Amendment rights, she said.

“I would not like to see more of this entanglement of government and platforms going forward,” she said Peikoff and instead to “leave human beings free to information and speech.”

Screenshot of Drew Clark and Amy Peikoff during Wednesday’s Broadband Breakfast’s Online Event

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, May 11, 2022, 12 Noon ET – Mr. Musk Goes to Washington: Will Twitter’s New Owner Change the Debate About Social Media?

The acquisition of social media powerhouse Twitter by Elon Musk, the world’s richest man, raises a host of issues about social media, free speech, and the power of persuasion in our digital age. Twitter already serves as the world’s de facto public square. But it hasn’t been without controversy, including the platform’s decision to ban former President Donald Trump in the wake of his tweets during the January 6 attack on the U.S. Capitol. Under new management, will Twitter become more hospitable to Trump and his allies? Does Twitter have a free speech problem? How will Mr. Musk’s acquisition change the debate about social media and Section 230 of the Telecommunications Act?

Guests for this Broadband Breakfast for Lunch session:

  • Amy Peikoff, Chief Policy Officer, Parler
  • Drew Clark (host), Editor and Publisher, Broadband Breakfast

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Illustration by Mohamed Hassan used with permission

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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