Arnold & Porter Discusses Congressional Antitrust Reform Targeting Big Tech

Senior congressional antitrust leaders on both sides of the Capitol are taking steps to transition a long-running investigation into competition practices in the technology sector into legislative action. Activity kicked off on Friday, June 11, when the House Judiciary Committee’s top antitrust leaders introduced legislation responsive to the Committee’s final report and recommendations from the “Investigation In Digital Markets,” which the Committee formally adopted in a party-line vote on April 13. Following introduction, however, it became clear that House activity is not taking place in a vacuum. Senator Amy Klobuchar (D-MN), who chairs the Judiciary Committee’s Antitrust Subcommittee, revealed on June 14 that she is contemplating legislation that could address similar concepts—signaling that Chair Klobuchar senses bipartisan momentum for targeted legislation addressing very large technology platforms.

We provide high-level analysis of the four House bills below, followed by potential next steps at the House Judiciary Committee and beyond.

House Activity: Antitrust Leaders Introduce Targeted Platform Legislation

Five antitrust bills were introduced in the House on June 11, with bipartisan support, four of which aim to significantly impact the largest online technology platforms and consumer electronics manufacturers. The package was spearhead by the House Judiciary Committee’s Antitrust Subcommittee Chairman, Rep. David Cicilline (D-RI) and Ranking Republican Member Ken Buck (R-CO) in a coordinated release designed to demonstrate bipartisan support for legislation to address perceived competitive challenges in the US technology ecosystem. Four of the bills target certain large technology companies by focusing on “covered platforms,” which have a requisite number of active users, have at least $600 billion in revenue or market cap, and are a “critical trading partner” for the sale or provision of any product or service on or related to the platform.

One of the bills, the “Ending Platform Monopolies Act” (H.R. 3825), would allow the DOJ or FTC to bring actions to force platforms to sell off business that create a conflict of interest. A second bill, the “Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act,” would require platforms to take steps to enable users to transfer their data to other products. A third bill, the “American Choice and Innovation Online Act” (H.R. 3816), would prohibit the covered platforms from favoring their own products over those of other companies. A fourth bill, the “Platform Competition and Opportunity Act” (H.R. 3826) would increase the ability of the FTC and DOJ to block acquisitions by covered platform operators, including acquisitions of nascent rivals. A fifth bill also introduced would increase HSR filing fees for M&A transactions, and increase the budges of the antitrust enforcement agencies.

The four bills addressing competitive conduct in the technology sector are led by up-and-coming members of the Judiciary Committee and senior committee and Democratic caucus leaders—including Chairman Cicilline and Rep. Hakeem Jeffries (D-NY), who sponsored H.R. 3816 and H.R. 3826 respectively.

Next Steps: Potential Follow-Up Activity

The House Judiciary Committee appears to be moving quickly to consider the legislation after introduction. Full Committee Chair Jerry Nadler (D-NY), told reporters on Wednesday, June 16 that the Committee will vote on the package in a markup next week. Prospects for further movement are unclear, assuming the Committee ultimately adopts the package with some level of bipartisan support. However, any Republican support at the committee level beyond those that are already co-sponsors could signal wider support in the GOP conference if the bills ultimately move to the House floor for consideration. Any additional Republican support could then impact the trajectory of Senate activity moving forward.

Other Development

The appointment of Lina Khan, a frequent critic of big tech platforms, as Chair of the FTC rather than just Commissioner, represents an additional headwind for big tech.

This post comes to us from Arnold & Porter Kaye Scholer LLP. It is based on the firm’s memorandum, “Congressional Antitrust Reform Targeting ‘Big Tech’ Kicks In,” dated June 17, 2021, and available here.

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