Antitrust
In Wake of Antitrust Review, Lawyers Say Current Laws are Adequate
Antitrust lawyers are concerned about a chilling effect over-regulation could bring.

WASHINGTON, April 7, 2022 – In the wake of a public request for information by the Federal Trade Commission and Justice Department for information related to the modernization of antitrust laws, some observers are arguing the system does not need to be changed.
Earlier this year, the FTC and the DoJ announced the launch of a review of merger guidelines, holding a press conference on the matter on the same day Microsoft announced its proposed $70-billion acquisition of video games publisher Activision-Blizzard.
During an Information Technology and Innovation Foundation event hosted on Friday, Gibson Dunn law firm partner Kristen Limarzi voiced criticism over the phrase “killer acquisition.”
Companies accused of engaging in killer acquisitions – or acquisitions designed to stifle potential competition in its infancy – were placed squarely in the federal government’s crosshairs when President Joe Biden signed the executive order on Promoting Competition in the American Economy.
“It is also the policy of my Administration to enforce the antitrust laws to meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms, especially as they stem from serial mergers, the acquisition of nascent competitors, the aggregation of data, unfair competition in attention markets, the surveillance of users, and the presence of network effects,” the order reads.
Bills with similar intent – to target killer acquisitions – have been supported by myriad legislators. Despite this effort, Limarzi pushed back against the rhetoric. “The term ‘killer acquisition’ is sufficiently evocative that a lot of people have adopted it to apply to any merger that they think ought to be blocked, which is not a not a very useful definition.”
Current antitrust framework doesn’t need changes
To address the question whether an acquisition should be considered anticompetitive or “killer,” Limarzi argued that regulators should ask, “what does the world look like with and without the merger and are [the outcomes] substantially different from a competition perspective?”
In Limarzi’s view, the FTC’s current framework to determine whether to pursue an acquisition is sufficient and not in need of change.
“Where the facts establish that there is actual nascent potential competition that is being eliminated [the FTC] succeeds and where the facts are not there, they do not – but that is not a deficiency in the legal framework,” she said.
Koren Wong-Ervin, an antitrust partner with Axinn, Veltrop and Harkrider, stated that as it stands now, there is no systemic failure in merger enforcement.
“I do not think we have any evidence [of systemic failure],” Wong-Ervin said. “I think a lot of this debate comes down to different beliefs – faith in market versus faith in governments to intervene.”
Wong-Ervin said it is better to under-regulate rather than over-regulate mergers. “Markets can self-correct over time, if you don’t intervene when you should, whereas if you do intervene when you should not, it has a chilling effect,” she explained. “The debate is really about whether you believe that markets can self-correct.”
“If there was rampant under-enforcement and a concentration and monopoly problem and our markets were suffering – you would expect to see this more systematically – [it] would show up in our merger retrospective studies, and were a just now [seeing that],” she said.
Commentators on an Institute for Policy Innovation panel last year made similar pleadings for Washington to avoid hardline antitrust regulation that they said will put a damper on start-up businesses.
The Biden administration has generally taken a harder line against mergers when compared to the Trump administration, as evidenced by big tech critic Lina Khan’s appointment to the FTC, Google critic Jonathan Kanter’s nomination to the DoJ’s antitrust division, and net neutrality advocate Tim Wu’s appointment to the National Economic Council.
Antitrust
FTC Funding Request Harshly Criticized by Republican Lawmakers
The agency’s aggressive approach to antitrust under Chair Lina Khan has sparked controversy.

WASHINGTON, April 19, 2023 — House Republicans expressed skepticism about the Federal Trade Commission’s requested budget increase during a Tuesday hearing, accusing the agency of overstepping its jurisdiction in pursuit of a progressive enforcement agenda.
The hearing of the Innovation, Data and Commerce Subcommittee showcased sharp partisan tension over Chair Lina Khan’s aggressive approach to antitrust — heightened by the fact that both Republican seats on the five-member agency remain vacant.
Khan, alongside Democratic Commissioners Rebecca Slaughter and Alvaro Bedoya, argued that the $160 million budget increase was necessary for maintaining existing enforcement efforts as well as “activating additional authorities that Congress has given us.”
But Republican lawmakers seemed unwilling to grant the requested funds, which would bring the agency’s total annual budget to $590 million.
“You seem to be squandering away the resources that we currently give you in favor of pursuing unprecedented progressive legal theories,” said Subcommittee Chair Gus Bilirakis, R-Fla.
“What is clearly needed — before Congress considers any new authorities or funding — are reforms, more guardrails and increased transparency to ensure you are accountable to the American people,” said Rep. Cathy McMorris Rodgers, R-Wash., chair of the Energy and Commerce Committee.
Rep. Frank Pallone, D-N.J., ranking member of the full committee, defended the funding request by saying the FTC has “one of the broadest purviews of any federal agency: fighting deceptive and unfair business practices and anti-competitive conduct across the entire economy.”
“Managing this portfolio with less than fourteen hundred employees is no small feat,” Pallone said, noting that the FTC currently has fewer employees than it did 45 years ago.
FTC highlights potential AI threats, other tech developments
FTC staff and Democratic lawmakers have been flagging concerns about understaffing at the agency for years, arguing that rapid technological and market changes have increased the scope and complexity of the agency’s role.
“The same lawyers who ensure that social media companies have robust privacy and data security programs are making sure labels on bed linens are correct,” testified former Chief Technologist Ashkan Soltani at a Senate hearing in 2021.
In their written testimony, commissioners detailed several emerging priorities related to technological developments — such as combatting online harms to children and protecting sensitive consumer data shared with health websites — and emphasized the corresponding need for increased resources.
The agency is also preparing to pursue violations related to artificial intelligence technologies, Khan said, as the “turbocharging of fraud and scams that could be enabled by these tools are a serious concern.”
But several tech-focused trade groups, including the Computer & Communications Industry Association, have signaled opposition to FTC expansion.
“The FTC can best carry out its mission if it heeds the committee’s call to return its focus to consumer needs and consumer fraud — rather than pursuing cases rooted in novel theories against American companies,” CCIA President Matt Schruers said after the hearing.
The Consumer Technology Association urged lawmakers to reject the requested budget increase in a letter sent Friday.
“In 2022, agency data shows consumers reported losing almost $8.8 billion to scams… Despite this mounting caseload of fraud, identity theft and related cases, the FTC appears more interested in attacking U.S. tech companies, to the detriment of consumers who have benefitted from an unparalleled explosion of innovative, online-based products and services,” CTA President Gary Shapiro wrote.
Antitrust
Google CEO Promotes AI Regulation, GOP Urges TikTok Ban for Congress Members, States Join DOJ Antitrust Suit
Widespread AI applications could lead to a dramatic uptick in online disinformation, Pichai warned.

April 18, 2023 — Google CEO Sundar Pichai on Sunday called for increased regulation of artificial intelligence, warning that the rapidly developing technology poses broad societal risks.
“The pace at which we can think and adapt as societal institutions compared to the pace at which the technology’s evolving — there seems to be a mismatch,” Pichai said in an interview with CBS News.
Watch Broadband Breakfast on April 26, 2023 – Should AI Be Regulated?
What are the risks associated with artificial intelligence deployment, and which concerns are just fearmongering?
Widespread AI applications could lead to a dramatic uptick in online disinformation, as it becomes increasingly easy to create and spread fake news, images and videos, Pichai warned.
Google recently released a series of recommendations for regulating AI, advocating for “a sectoral approach that builds on existing regulation” and cautioning against “over-reliance on human oversight as a solution to AI issues.”
But the directive also noted that “while self-regulation is vital, it is not enough.”
Pichai emphasized this point, calling for broad multisector collaboration to best determine the shape of AI regulation.
“The development of this needs to include not just engineers, but social scientists, ethicists, philosophers and so on,” he said. “And I think these are all things society needs to figure out as we move along — it’s not for a company to decide.”
Republicans call to ban members of Congress from personal TikTok use
A group of Republican lawmakers on Monday urged the House and Senate rules committees to ban members of Congress from using TikTok, citing national security risks and the need to “lead by example.”
Congress banned use of the app on government devices in late 2022, but several elected officials have maintained accounts on their personal devices.
In Monday’s letter, Republican lawmakers argued that the recent hearing featuring TikTok CEO Shou Zi Chew made it “blatantly clear to the public that the China-based app is mining data and potentially spying on American citizens.”
“It is troublesome that some members continue to disregard these clear warnings and are even encouraging their constituents to use TikTok to interface with their elected representatives – especially since some of these users are minors,” the letter continued.
TikTok is facing hostility from the other side of the aisle as well. On Thursday, Rep. Frank Pallone, D-N.J., sent Chew a list of questions about the app’s privacy and safety practices that House Democrats claimed were left unanswered at the March hearing.
Meanwhile, Montana lawmakers voted Friday to ban TikTok on all personal devices, becoming the first state to pass such legislation. The bill now awaits the signature of Gov. Greg Gianforte — who was one of several state leaders last year to mimic Congress in banning TikTok from government devices.
Nine additional states join DOJ’s antitrust lawsuit against Google
The Justice Department announced on Monday that nine additional states joined its antitrust lawsuit over Google’s alleged abuse of the digital advertising market.
The Attorneys General of Arizona, Illinois, Michigan, Minnesota, Nebraska, New Hampshire, North Carolina, Washington and West Virginia joined the existing coalition of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee and Virginia.
“We look forward to litigating this important case alongside our state law enforcement partners to end Google’s long-running monopoly in digital advertising technology markets,” said Doha Mekki, principal deputy assistant attorney general of the Justice Department’s Antitrust Division.
The lawsuit alleges that Google monopolizes digital advertising technologies used for both buying and selling ads, said Jonathan Kanter, assistant attorney general of the Justice Department’s Antitrust Division, when the suit was filed in January.
“Our complaint sets forth detailed allegations explaining how Google engaged in 15 years of sustained conduct that had — and continues to have — the effect of driving out rivals, diminishing competition, inflating advertising costs, reducing revenues for news publishers and content creators, snuffing out innovation, and harming the exchange of information and ideas in the public sphere,” Kanter said.
Antitrust
Panel Disagrees on Antitrust Bills’ Promotion of Competition
Panelists disagree on the effects of two antitrust bills intended to promote competition.

WASHINGTON, March 10, 2023 – In a fiery debate Thursday, panelists at Broadband Breakfast’s Big Tech and Speech Summit disagreed on the effect of bills intended to promote competition and innovation in the Big Tech platform space, particularly for search engines.
One such innovation is new artificial intelligence technology being designed to pull everything a user searches for into a single page, said Cheyenne Hunt-Majer, big tech accountability advocate with Public Citizen. It is built to keep users on the site and will drastically change competition in the search engine space, she said, touting the advancement of two bills currently awaiting Senate vote.

Photo of Adam Kovacevich of Chamber of Progress, Berin Szoka of TechFreedom, Cheyenne Hunt-Majer of Public Citizen, Sacha Haworth of Tech Oversight Project, Christine Bannan of Proton (left to right)
The first, the American Innovation and Choice Online Act, would prohibit tech companies from self-preferencing their own products on their platforms over third-party competition. The second, the Open App Markets Act, would prevent app stores from requiring private app developers to use the app stores’ in-app payment system.
Hunt-Majer said she believes that the bills would benefit consumers by kindling more innovation in big tech. “Perfect should not be the enemy of change,” she said, claiming that Congress must start somewhere, even if the bills are not perfect.
“We are seeing a jump ahead in a woefully unprepared system to face these issues and the issues it is going to pose for a healthy market of competition and innovation,” said Hunt-Majer.
It is good for consumers to be able to find other ways to search that Google isn’t currently providing, agreed Christine Bannan, U.S. public policy manager at privacy-focused email service Proton. The fundamental goal of these bills is directly at odds with big companies, which suggests its importance to curb anti-competitive behavior, she said.
No need to rewrite or draft new laws for competition
But while Berin Szoka, president of non-profit technology organization TechFreedom, said competition concerns are valid, the Federal Trade Commission is best equipped to deal with disputes without the need to rewrite or draft new laws. Congress must legislate carefully to avoid unintended consequences that fundamentally harm businesses and no legislation has done so to date, he said.
Both bills have broad anti-discrimination provisions which will affect Big Tech partnerships, Szoka continued.
Not all experts believe that AI will replace search engines, however. Google has already adopted specialized search results that directly answer search queries, such as math problems, instead of resulting in several links to related webpages, said Adam Kovacevich, CEO of Chamber of Progress, a center-left tech policy coalition.
Kovacevich said he believes that some search queries demand direct answers while others demand a wide range of sources, answers, and opinions. He predicts that there will be a market for both AI and traditional search engines like Google.
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