Randy Picker on How Proposed House Bills Could Change Big Tech

The House’s Recent Spate of Antitrust Bills Would Change Big Tech as We Know It

“Move fast and break things.” That used to be Facebook’s motto, but it could now just as easily apply to the House antitrust subcommittee. On June 11th, five new antitrust bills were introduced in the House of Representatives and last week, after a marathon mark-up session, the subcommittee advanced the bills to the full House for consideration. If enacted, the bills would represent the most dramatic statutory changes to US antitrust law since the passage of the Federal Trade Commission Act and the Clayton Act in 1914. One short bill, HR 3843, would adjust merger filing fees, but the other four bills address the dominant digital platforms—no firm is namechecked, but the bills target Google, Apple, Facebook, Amazon, and probably Microsoft—and would dramatically reset the daily digital lives of US consumers. 

Taken together, the four platform bills address three critical questions: (1) What markets can the digital platforms operate in? (2) How can the platforms enter new markets? (3) What restricts how the platforms are allowed to compete?

HR 3826, also known as the Platform Competition and Opportunity Act of 2021, would largely bar the covered platforms from acquiring other businesses, though as these markets evolve, firms presumably could drop in and out of coverage. Current US antitrust law limits horizontal mergers that reduce competition—typically mergers between firms that currently compete with each other directly—and imposes much weaker limits on vertical mergers (like AT&T’s temporary purchase of Time-Warner). The limits on the covered platforms in the Platform Competition and Opportunity Act aren’t absolute (and I believe that a $50 million or below exclusion was added during markup based on an amendment by Rep. Deborah Ross (D-NC)), but for practical purposes would block many of the acquisitions that the Big Tech firms would want to make.

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