House Judiciary Committee Clears Six Antitrust Bills Targeting Big Tech Companies

June 25, 2021— Some of the votes were exceedingly close, but in a grueling markup Wednesday and Thursday, the House Judiciary Committee cleared six bills each designed to target the biggest tech companies by limiting what they can do.

The goal of the Democratic-led agenda? To rein in the power of Big Tech through new antitrust liability.

The package follows a 16-month investigation by Judiciary’s Antitrust Subcommittee, completed last year and scrutinizing the business practices of Amazon, Apple, Google, and Facebook. The final report accused the firms of charging high prices to competitors, forcing small customers into low-quality contracts, and acquiring smaller companies that posed a competitive threat.

While some of the measures have gained traction on both sides of the political spectrum, they have also divided both the Republican and Democratic members of the Judiciary Committee. The controversy will continue as the measure goes to the House floor, and – if passed – on to the Senate.

Broadband Breakfast examined each of the six measures voted on by the committee, and some ways that they might impact Big Tech’s business practices.

American Choice and Innovation Online Act, H.R. 3816

The American Choice and Innovation Online Act, H.R. 3816, introduced by subcommittee Chairman David Cicilline, D-Rhode Island, is in some ways the core of a five-bill package introduced by Democrats on June 11.

Referred in short-hand as the “non-discrimination” measure, it aims to limit how online marketplace arbiters operate their platforms by making it illegal for operators to favor their own products over those of competitors in the market that they operate.

Cicilline’s bill would bar designated platforms from sponsoring their own products, and nor could they discriminate against either the pricing of or access to competing services offered on the same marketplace.

The bill applies only to companies with more than 50 million users, 100,000 business users, or a market capitalization of more than $600 billion.

This would make it so that Apple, for example, could not favor their own applications over that of their competitor Google on their own App Store, and visa-versa on Google’s search engine.

Some experts believe this bill would put an end to pre-installed iPhone apps, YouTube results in Google searches, and would bar Google from displaying their own Google map’s service in Google searches.

The committee vote for the measure was 24 to 20.

Platform Competition and Opportunity Act, H.R. 3826

The Platform Competition and Opportunity Act, H.R. 3826, introduced by Rep. Hakeem Jeffries, D-New York, restricts mergers and acquisitions facilitated by “covered platforms” under the same designations as Cicilline’s non-discrimination measure.

The bill prevents designated Big Tech companies from acquiring or merging with other firms unless the firm can prove:

• The acquired assets don’t compete with the buying platform’s business.
• The acquisition does not cover a company that poses a potential competitor, presently or in the future.
• It doesn’t enhance the company’s market position.
• It doesn’t enhance the company’s ability to maintain its current market position.

The bill explicitly states that both consumer attention and collected data count as assets and must be considered when completing a merger of acquisition.

The committee vote for the measure was 23-18, with one Republican, Rep. Burgess Owens, voting “present.”

Ending Platform Monopolies Act, H.R. 3825

The Ending Platform Monopolies Act, H.R. 3825, introduced by Rep. Pramila Jayapal, D-Washington, is similar to Cicilline’s non-discrimination bill, except that instead of prohibiting online marketplace arbiters from promoting their products, it makes it illegal to sell their own product on a market they operate.

The most controversial of the package, this would allow federal regulators to sue to break up companies that both operate a dominant platform and sell their own goods or services on it, if the arrangement poses an “irreconcilable conflict of interest.”

This could potentially target company-branded products sold by Amazon, as well as making it easier to breakup Google and Facebook.

It also explicitly states that covered platforms cannot offer a product that users may purchase to receive “preferred status” on the platform’s marketplace. Consumer Technology Association CEO Gary Shaprio said that the package could put an end to Amazon Prime services.

Also weighing in was Computer and Communications Industry Association President Matt Schruers, who said, “These bills unreasonably target leading U.S. tech companies that have improved users’ experience with innovation, efficiency, and low-cost or free-to-the-user services. These bills would harm consumers and thousands of smaller businesses that use digital services to reach worldwide markets.”

The final of the six measures voted on, the committee vote for the measure was 21-20. Three representatives present for the markup did not vote, and were recorded as neither “aye,” “no” or “present”: Rep. Lucy McGath, D-Ga., Rep. Deborah Ross, D-N.C., and Owens.

Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, H.R. 3849

The Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, H.R. 3849, introduced by Rep. Mary Gay Scanlon, D-Pennsylvania, aims to promote competition amidst platforms by making it easier for consumers to leave the platform and take their data to competitors.

Currently, the massive amounts of data that platforms collect help secure user attention for longer periods of time is believed to make advertisers more likely to purchase advertising space on the platform. Because users interact with the content for longer periods, there is a greater chance they will interact with advertised products. Because younger, smaller firms don’t have access to the quantity of data big platforms do, it makes it difficult for them to compete at scale.

The ACCESS Act of 2021 would mandate that all covered platforms maintain a set of “transparent, third-party-accessible” interfaces that enables a secure transfer of data to another business at the user’s request.

The ACCESS Act would prohibit companies from altering the transfer interface without consent of the Federal Trade Commission unless a threat to a user’s security was imminent.

The committee vote for the measure was 25-19.

Merger Filing Fee Modernization Act, H.R. 3843

The Merger Filing Fee Modernization Act, H.R. 3843, introduced by Rep. Joe Neguse, D-Colorado, offers additional resources to the FTC and Department of Justice to police monopoly power, at no additional cost to taxpayers.

The bill amends Section 605 of Public Law 101-162, granting additional funding to the departments. It also increases funding year to year beginning in 2022, based upon the consumer price index and inflation rate.

The bill also increases the cost of pre-filing merger fees and slates it to increase year by year based on the inflation rate.

Although seen as the least controversial of the package, this first measure for the committee resulted in a spirited debate between committee Ranking Member Jim Jordan, R-Ohio, about whether Democrats were writing a blank check to the Biden White House on antitrust enforcement.

The committee vote for the measure was 29-12.

State Antitrust Enforcement Venue Act, H.R. 3460

A sixth antitrust measure also voted on in the markup had been previously introduced by subcommittee Ranking Member Ken Buck, R-Colorado. Buck’s two-page measure was introduced in May.

It would give state attorneys general control over which courts hear antitrust cases. It emerged after Google attempted to move a multistate antitrust suit against it from Texas federal court to a venue in its home state of California.

The committee vote for the measure was 34-7.