Senate Commerce Committee leaders were hoping to meet with Senate leadership Tuesday or Wednesday to establish chips legislation negotiations, ranking member Roger Wicker, R-Miss., told us Tuesday. Chair Maria Cantwell, D-Wash., addressed the possibility of moving to informal conference negotiations to speed up the process.
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
The Senate Judiciary Committee voted 16-6 Thursday to advance to the floor a bill that would ban Big Tech platforms from self-preferencing products (see 2201140049). Despite calls from tech companies and Republicans for a legislative hearing, Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., told us she’s focused on getting the bill to the floor.
Their agencies hope to issue joint takeover guidelines this year, DOJ Antitrust Division Chief Jonathan Kanter announced with FTC Chair Lina Khan Tuesday. The rise in mergers and acquisitions has been a key driver in consolidation, including in tech, and the M&A guidelines should reflect modern challenges, they told a livestreamed news conference.
Sponsors of a bill that would ban Big Tech platforms from self-preferencing their products are optimistic about passage, but two Republican holdouts shared reservations in interviews last week. The American Innovation and Choice Online Act (S-2992) is set for markup Thursday after being held over one week. The bill would bar dominant platforms from acting to prevent rival products from competing on their platforms.
The Senate Judiciary Committee advanced the nomination of Katherine Vidal to lead the Patent and Trademark Office on a 17-5 vote Thursday. Voting no: Jon Ossoff, D-Ga.; Josh Hawley, R-Mo.; John Kennedy, R-La.; Ted Cruz, R-Texas; and Mike Lee, R-Utah. Kennedy, the only opposing voter to speak on the nomination, said Vidal gave nonanswers to his questions about Big Tech’s influence over the PTO. He voted against prior nominees because they’re “in the pockets” of Big Tech, he said. Kennedy said Big Tech “doesn’t like” patents because they interfere with market dominance. Chairman Dick Durbin, D-Ill., told Kennedy: “I don’t want to step on any news that will be issued after this meeting, but buckle your seatbelt. This committee is going to be taking some forays into the field you just mentioned.” Durbin is a co-sponsor of S-2992, the American Innovation and Choice Online Act, which the committee held over Thursday, as expected (see 2201110053). Durbin called Vidal a “well-qualified” nominee with a deep understanding of the PTO. Sen. Thom Tillis, R-N.C., voiced his support for Vidal, saying she will continue the “reforms” started by former Director Andrei Iancu (see 2201050046) for the Patent Trial and Appeal Board and Big Tech. He credited Iancu for “going after” Big Tech, which is making it difficult for small innovators to protect intellectual property. Sen. Patrick Leahy, D-Vt., agreed with Tillis.
The Senate Judiciary Committee scheduled an antitrust bill for markup Thursday morning (see 2110210003). The American Innovation and Choice Online Act would prohibit online platforms from self-preferencing their products. This is the first time S-2992 has appeared on the agenda, meaning the committee expects to hold it over a week. Sens. Chuck Grassley, R-Iowa, and Amy Klobuchar, D-Minn., introduced the measure. Klobuchar said she looks forward to voting the bill out of committee. The proposal would “bring greater fairness for small businesses and more transparency for consumers to these dominant online platforms,” said Grassley. “Gerrymandering regulations around a handful of leading businesses will skew competition and leave consumers worse off,” said Computer and Communications Industry Association President Matt Schruers. “By hamstringing successful U.S. tech companies without even imposing corresponding obligations on foreign rivals, this shortsighted legislation will put the data and security of U.S. users at risk.” NetChoice criticized the committee for not holding a legislative hearing on the bill. “A bill that threatens to remove choice, increase prices, and expose our personal information to foreign actors should, at a minimum, start with a hearing and transparent debate,” said Vice President Carl Szabo. The markup is set for 9 a.m. in 216 Hart.
Don’t expect the tech industry to replace the Internet Association, due to a lack of justification for the investment and to duplicative associations, tech officials told us in interviews. IA shuttered at the end of 2021 (see 2112150026).
The FTC provided stronger evidence supporting its case against Facebook, and Chair Lina Khan doesn’t need to recuse herself, a federal judge ruled Tuesday. He threw out the social media network’s attempt to dismiss the case, as was expected (see 2108240059). The agency’s newly presented facts fortify its theories, particularly about claims about Facebook’s social networking monopoly, wrote U.S. District Judge James Boasberg in 1:20-cv-03590 (Pacer). The FTC alleged Facebook has a monopoly in personal social networking services and unlawfully maintained that monopoly. Facebook bought rivals Instagram and WhatsApp and unlawfully implemented policies preventing interoperability between Facebook and apps it viewed as nascent threats, the FTC argued. In its amended complaint, the agency presented “detailed factual allegations” and multiple metrics to show Facebook’s market dominance, wrote Boasberg. Facebook argued commissioners' vote authorizing the complaint was invalid because Khan showed prejudgment against the company in her work before joining the agency. Khan was “acting in a prosecutorial capacity, as opposed to in a judicial role, in connection with the vote” and therefore didn’t violate any ethical rules, wrote Boasberg, also as expected. The company didn’t comment.
Media and tech groups offered competing comments last week on the Copyright Office’s study on potential copyright and competition protection for the news industry. Comments were due Wednesday on a study about “effectiveness of copyright protections for publishers, with a focus on press publishers.” The CO should recognize that Big Tech’s aggregation of “valuable news content” is a “major contributor” to the struggle of news publishers, the Copyright Alliance commented. The organization suggested the office offer guidance on copyright principles for news aggregation and recommend further study on competition and antitrust issues. News publishers and creators are relying on the agency to “diagnose the problem and to clarify how copyright laws actually operate in the context of news aggregation,” the organization said. Clarify the law and policies to strengthen news publishers’ rights, the News Media Alliance asked. It recommended the CO amend its policies on copyrightability of “words and short phrases,” clarify the law on “substantial takings and systematic use of news content,” study the need for “sui generis protections for news publishers” and study further guidance or congressional action on "the use of news content for artificial intelligence applications.” The Computer and Communications Industry Association opposed the Journalism Competition and Preservation Act (see 2103120066). JCPA is bipartisan legislation to give news outlets power to negotiate with Big Tech over compensation for content. A few commenters asked the CO to weigh in on the legislation. CCIA said the proposal is outside the scope of the CO’s inquiry and expertise. CCIA argued the legislation would allow larger news publishers to dominate negotiations, leading to further consolidation of the news industry. The JCPA would likely “benefit large actors, continuing the power imbalance and leaving smaller outlets and tech-enabled media startups behind,” commented Engine. Defining what is and isn’t subject to “enhanced copyright or competition protection” would put the federal government in the problematic position of “picking winners and losers when it comes to speech,” Engine said.
The Senate Commerce Committee’s primary goal is to get the U.S. Innovation and Competition Act (S-1260) signed into law, Chair Maria Cantwell, D-Wash., said Friday during a CES 2022 panel streamed from Las Vegas.