Antitrust Law Daily House lawmakers moving forward with package of antitrust legislation aimed at big tech
Monday, June 14, 2021

House lawmakers moving forward with package of antitrust legislation aimed at big tech

By Jeffrey May, J.D.

Five bipartisan bills take aim at big tech companies. The package also includes companion legislation to a Senate bill that would increase HSR Act premerger filing fees for larger transactions.

Big tech is the target of a package of five bipartisan bills drafted by members of the House antitrust subcommittee. David N. Cicilline (D., R.I.), subcommittee chairman, and Ranking Member Ken Buck (R., Colo.) announced the legislation to hold "unregulated Big Tech monopolies accountable for anti-competitive conduct" on June 11. Among other things, the bills would block dominant firms from acquiring competitive threats and would prohibit platform operators from discriminating in favor of their own products, services, or lines of business over those of another business user. Another measure would have a broader impact on businesses engaged in acquisitions. One measure is companion legislation to a Senate bill that would update HSR Act premerger filing fees to help fund the FTC and Department of Justice Antitrust Division.

The legislation follows last year’s subcommittee investigation into anticompetitive practices in the sector. In October 2020, the House antitrust subcommittee released a staff report entitled Investigation of Competition in Digital Markets examining dominant online platforms Facebook, Google, Amazon, and Apple, and recommending reforms. Another report, entitled The Third Way: Antitrust Enforcement in Big Tech , was released by Buck, which at the time called for a less dramatic response to the issues posed by big tech. The current legislation has the support of Buck and other House Republicans. In addition to Buck, Republicans that signed on were: Rep. Matt Gaetz (R., Fla.), Rep. Lance Gooden (Texas), Rep. Burgess Owens (Utah), Rep. Victoria Spartz (Indiana), and Rep. Chip Roy (Texas).

American Innovation and Choice Online Act. The proposed "American Innovation and Choice Online Act" (H.R. 3816) would prohibit discriminatory conduct by dominant platforms, including a ban on self-preferencing and picking winners and losers online. In other words, it would block dominant firms from acquiring competitive threats and would prohibit platform operators from discriminating in favor of their own products, services, or lines of business over those of another business user.

Platform Competition and Opportunity Act. The proposed "Platform Competition and Opportunity Act" (H.R. 3826) would prohibit acquisitions of competitive threats by dominant platforms, as well acquisitions that expand or entrench the market power of online platforms.

Ending Platform Monopolies Act. The proposed "Ending Platform Monopolies Act" (H.R. 3825) eliminates the ability of dominant platforms to leverage their control across multiple business lines to self-preference and disadvantage competitors in ways that undermine free and fair competition.

ACCESS Act. The proposed "Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act" would promote competition online by lowering barriers to entry and switching costs for businesses and consumers through interoperability and data portability requirements.

Merger Filing Fee Modernization Act. The proposed "Merger Filing Fee Modernization Act" (H. R. 3843) would update filing fees for mergers for the first time in two decades to ensure that the Department of Justice and the FTC have the resources they need to aggressively enforce the antitrust laws. The measure would increase Hart-Scott-Rodino or HSR Act premerger notification filing fees for larger transactions. In addition, filing fees will be linked to increases in the Producer Price Index going forward. Fees currently range from $45,000 to $280,000 depending on the size of the transaction. Under the proposal, fees would range from $30,000 for the smallest reportable transactions to $2,250,000 for the largest.

The bill also increases funding for the FTC and Antitrust Division for fiscal year (FY) 2022. Funding would bet set at $252 million for the Antitrust Division and $418 million for the FTC.

On June 8, the Senate passed the Merger Filing Fee Modernization Act (S. 228) co-sponsored by Senate Judiciary competition policy, antitrust, and consumer rights subcommittee Chair Amy Klobuchar (D., Minn.) and subcommittee ranking member Chuck Grassley (R., Iowa) as an amendment to the U.S. Innovation and Competition Act (S. 1260).

Buck statement. "Big Tech has abused its dominance in the marketplace to crush competitors, censor speech, and control how we see and understand the world," said Buck in announcing the legislative package. "Apple, Amazon, Facebook, and Google have prioritized power over innovation and harmed American businesses and consumers in the process. These companies have maintained monopoly power in the online marketplace by using a variety of anticompetitive behaviors to stifle competition. This legislation breaks up Big Tech’s monopoly power to control what Americans see and say online and fosters an online market that encourages innovation and provides American small businesses with a fair playing field. Doing nothing is not an option, we must act now."

Cicilline statement. "Right now, unregulated tech monopolies have too much power over our economy," said Cicilline in a statement. "They are in a unique position to pick winners and losers, destroy small businesses, raise prices on consumers, and put folks out of work. Our agenda will level the playing field and ensure the wealthiest, most powerful tech monopolies play by the same rules as the rest of us."

Industry group reaction. Response from industry interest groups was quick. The Information Technology and Innovation Foundation (ITIF) was critical of the legislation. The think tank said that the legislation takes "direct inspiration from the European Commission’s Digital Markets Act and impose stringent obligations and prohibitions on a handful of innovative companies." It did, however, see benefits from increased agency funding.

The Internet Accountability Project (IAP), a conservative advocacy group, expressed support for the measures. Noting that several Republicans on the House Judiciary Committee failed to join in the effort, the IAP questioned whether House Republicans will come around and address the issue of "trillion-dollar Big Tech monopolists who are canceling conservatives and crushing small businesses."

Companies: Inc.; Apple Inc.; Google, LLC; Facebook, Inc.

MainStory: TopStory AcquisitionsMergers Antitrust GCNNews AntitrustDivisionNews FederalTradeCommissionNews

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