Legislation looms as vectors of US antitrust debate become clear

Today the House Judiciary Committee Subcommittee on Antitrust, Commerical and Administrative Law continued Congressmen David Cicilline and Jerry Nadler's series of antitrust hearings focused on the tech oligopoly.

Under the title, Reviving Competition, Part 1: Proposals to Address Gatekeeper Power and Lower Barriers to Entry Online, in the Subcommittee on Antitrust, Commercial, and Administrative Law, the discussion highlighted the mechanics of antitrust interventions, and indicated an urgency in the effort to address these issues through legislation.

“Republicans and Democrats agree that these companies have too much power, and that Congress must curb this dominance,” Cicilline said. “Mark my words, change is coming, laws are coming. Every day, policymakers around the world are undertaking a similar process.”

Charlotte Slaiman, Competition Policy Director at Public Knowledge focused on the notion of interoperability and nondiscrimination as tools to address the gatekeeper power that big tech firms currently exercise, arguing the firms should "offer competitors and potential competitors access to key features of their networks to facilitate competition," and data portability.

Dr. Hal Singer, Managing Director of Econ One, a consultancy, argued Congress should "empower a tribunal with the authority to offer three types of relief
as it policies acts of discrimination on a case-by-case basis: (1) injunctive relief or ending the discrimination; (2) compelling the respondents to pay lost profits to the victims of discrimination; and (3) structural separation."

Singer said "any regime requiring platforms' cooperation and respect for rule of law is vulnerable to the extent that the platform believes it is above the law... certain platforms have accumulated so much economic & political power they may not be governable."

Eric Gundersen, Chief Executive Officer of Mapbox, which sells digital map services via API, testified about the dangers of anti-competitive behavior from Google, in particular, arguing the firm uses its dominance in search to destroy competition in other areas such as maps. "There’s no technical reason to restrict interoperability in this way. Customers—developers—should be able to buy whatever maps they think are the best solution for their needs without anti-competitive interference from Google."

Tad Lipsky, Director of Competition Advocacy Program at the Global Antitrust Institute, a firm that is funded by industry, gave a history of antitrust intervention in the US and concluded that "Congressional intervention at this point seems to suggest mistrust of the federal judicial process, and therefore should be regarded as both unwarranted or at least premature."

John Thorne, Partner, Kellogg, Hansen, Todd, Figel & Fredrick, argued that the Department of Justice needs more resources to take up antitrust investigations, and argued Congress should give regulators a new enforcement tool to pause "imminent harm" in order to make it easier for companies to see relief while litigation unfolds.

Finally, Morgan Harper, Senior Advisor, American Economic Liberties Project, argued breakup of the tech behemoths should be under consideration. “Regulatory tools alone cannot address the problem of entrenched market power, and can sometimes make it worse,” she testified. “The dominant tech platforms know they offer critical infrastructure, and can effectively ignore regulation.”

Harper testified that "Amazon runs the infrastructure for modern commerce, and engages in a host of anti-competitive practices, such as predatory pricing, leveraging its dominance from one market into another, self preferencing its own products, tieing its services to extract more money from those who use its services, and weaponizing counterfeit products." She said that regulatory efforts in Europe that had stopped short of breakup only entrenched the power of tech giants.

The next hearing "will address the news crisis, the crisis of local journalism, and the impact of the large technology platforms in facilitating that crisis, and some proposed responses," said Cicilline.