Cheat Sheet: How new antitrust bills could force more data access from Facebook and Google (and stop them from favoring their own services)

June 17, 2021

By Kate Kaye

The groundswell of antitrust activity is continuing to intensify.

A new round of bipartisan antitrust bills proposed in the U.S. House of Representatives is taking aim at big tech platforms like Google, Facebook and Amazon. If the legislative package passes, practical rule-making and actual enforcement may soon follow from the just-named Federal Trade Commission chair Lina Khan, an antitrust reform proponent.

Here’s a breakdown of what is in the bills, followed by an overview of their potential effects in practical terms:

  • Proposed as a package under the title, “Stronger Online Economy: Opportunity, Innovation, Choice,” the five bills introduced on June 11 are intended to work together as parts of a whole.
  • The bills deal mainly with a few key issues: self-preferential treatment by the platforms in favor of their own services, data control and access in relation to interoperability and data portability and acquisition of nascent competitors.
  • Like antitrust bills introduced previously this year, one of the bills puts the onus on tech platforms to prove they are not in violation of the law. Antitrust lawyers say this is a significant shift, because it forces platforms to establish clear evidence that they are not making anti-competitive moves in acquisitions, which could be difficult.
  • Led by Rhode Island Democrat Rep. David Cicilline along with Colorado Republican Rep. Ken Buck — the two leaders of the Antitrust Subcommittee — each bill has backing from co-sponsors on both sides of the aisle. That’s a necessary foundation for any momentum toward passage, and an indicator of the strong support among Democrats and the GOP for reining in the power of tech platforms.
  • It probably goes without saying, but a fight against these bills and the general push toward antitrust reform — supported by lawmakers, other corporations and consumer groups —can be expected from the platforms and their lobbyists.

Stopping discriminatory self-preservation

Two of the bills address self-preferential treatment and anti-discriminatory behavior by large platforms. The American Innovation and Choice Online Act prohibits platforms from advantaging their own products or services, such as by giving preferred status or placement to their own products or services or by disadvantaging similarly-situated businesses. A companion bill, the Ending Platform Monopolies Act, also deals with this self-preference concept by stopping platforms from wielding control across multiple business lines in ways that disadvantage competitors. The bills cover platforms with a market cap higher than $600 billion and at least 50 million U.S.-based monthly active users or at least 100,000 U.S.-based monthly active business users.

In practical terms: If passed, the American Innovation Act would mean Google could not display its own shopping results above those of other e-commerce players, for instance. Or, it might mean Facebook couldn’t favor Instant Articles over traditional links to publishers’ sites, or that Amazon couldn’t give preference to its own listings or brands over other sellers in its marketplace.

The Ending Platform Monopolies bill might have prevented Google from implementing the alleged Project Bernanke scheme, a core element of the Texas-led antitrust suit against the company, …read more

Source:: Digiday