Expect to See Antitrust Legislation Filed This Congress, Says Cicilline

Expect antitrust legislation to be introduced in the “late days of this Congress” to curb Big Tech’s dominance, House Antitrust Subcommittee Chairman David Cicilline, D-R.I., said Friday, discussing his panel’s recent report (see 2010070067). Regulation is on the agenda for this and next Congress, said during a Public Knowledge event, calling the report “just the beginning.”

Amazon, Apple, Facebook and Google have enormous incentive to resist any change to the market because they’re “benefiting enormously,” said Cicilline. The report said the four companies “have monopoly power” and are using it to maintain dominant positions, causing declines in innovation, consumer choice and privacy, said Cicilline: They’re using the market power to crush, copy and acquire competitors.

The House Antitrust Subcommittee delivered a non-comprehensive report with anecdotal evidence, said International Center for Law & Economics President Geoffrey Manne. The report made assumptions about the harm the companies cause without weighing the benefits to consumers and third-party sellers, he said, calling it a “horribly lopsided view.” The House Judiciary Committee appears to be condemning all Big Tech companies based on their success, not on any harm to consumers, said Sidley Austin Senior Counsel Timothy Muris, former FTC chairman, at a separate Competition Policy International event Friday.

The subcommittee’s effort showed general agreement between Democrats and Republicans that an investigation was necessary and antitrust law revisions are needed, said Georgetown Law Institute for Technology Law & Policy's Gigi Sohn at the PK event. Obviously there wasn’t complete agreement on everything, but there was more common ground than the press reported, she said. Sohn would have liked a recommendation for a new agency to oversee the digital market.

Manne disagreed that the report was bipartisan, suggesting Rep. Ken Buck, R-Colo., seemed to stand alone with his minority report, which was introduced the same day as the Democrats’ report. PK Policy Counsel Alex Petros corrected Manne, noting Buck’s report included endorsements from Reps. Doug Collins, R-Ga., Matt Gaetz, R-Fla., and Andy Biggs, R-Ariz. Republicans agree there’s a problem with Big Tech, said Petros.

The Democratic report doesn’t equate to legislation, said Sohn, calling it a marker and a beginning for Democrats, as mentioned by Cicilline. Institute for Local Self-Reliance Co-Director Stacy Mitchell discussed her own research and findings from the House Antitrust Subcommittee showing internal documents from Amazon. Company officials discussed heavy fee increases for third-party sellers in 2018, which resulted in “essentially no loss” of sellers, she said: “So basically saying, we can raise prices as much as we want, and it’s not going to matter.” Amazon didn’t comment.

It’s in Amazon’s interest to make sure third parties can succeed on the platforms and want to be there, countered Manne. Some sellers will inevitably fail, he said, noting the difficulty of succeeding in retail or as a startup: That doesn’t mean “a market is flawed or failing.” At the Competition Policy International event, Baker Botts Antitrust Chair Maureen Ohlhausen, former FTC acting chair, argued the House Antitrust Subcommittee’s Big Tech CEO hearing (see 2007290063) didn’t have a lot of focus on consumer impact: There was a lot of discussion about how companies use data to compete.