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Policy Briefing - House Antitrust Proposals

In late June 2021, the House Committee on the Judiciary of the 117th Congress approved a package of six antitrust bills. The bills passed largely along partisan lines, with notable exceptions on both sides. There was wider bipartisan support for the Merger Filing Fee Modernization Act (H.R. 3843) and State Antitrust Enforcement Venue Act (H.R. 3460) than the other bills, but both still faced opposition. The following is a factual summary of each bill without commentary on the alleged problem they seek to remedy, or if they are the appropriate response.

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Defining “Covered Platform”

The following bills create a new designation, the “covered platform”, that is utilized in several of the bills in this package. A “covered platform” is a status that can be designated by the FTC or Department of Justice upon an online platform that meets all three of the following criteria:

  1. has at least 50 million active monthly users in the U.S.;
  2. has at least 100 thousand active monthly business users in the U.S.;
  3. and is owned or controlled by someone with a market capitalization of over $600 billion.

H.R.3816 – American Choice and Innovation Online Act

    • Prohibits covered platforms from:
      • Engaging in conduct on their platform that advantages their own products and services, disadvantages other business user products or services, or discriminates between similar business users
      • Utilizing non-public data generated by business users
      • Restricting business users from accessing data they generated
      • Interfering with a business user’s pricing strategy
      • Restricting or impeding interoperability within their platform
    • An exception to the above restrictions is made if a covered platform can clearly and convincingly demonstrate that a practice either:
      • Does not harm the competitive process
      • Is narrowly tailored and cannot be achieved “through a less discriminatory means”, and was necessary to comply with federal and state law or to protect user privacy and data
      • Increases consumer welfare (per Bentz amendment)

H.R.3825 – Ending Platform Monopolies Act

  • Prohibits covered platforms from owning businesses, other than the covered platform itself, that:
    • Utilize their platform for the sale of their own products or services
    • Offer a product or service that a business user would need to purchase for access or preferred placement on the covered platform
    • Create a conflict of interest.

H.R.3826 – Platform Competition and Opportunity Act of 2021

  • Restricts acquisitions by covered platform of current or potential competitors, or acquisition that would enhance the covered platforms market position
  • Restricts acquisitions by covered platform of current or potential competitors, or acquisition that would enhance the covered platforms market position
  • An exception is made permitting platforms to acquire other entities if the assets are valued at less than $50 million (per Ross amendment).

H.R.3843 – Merger Filing Fee Modernization Act of 2021

  • Adjusts the fees associated with filing mergers by reducing them for smaller mergers and increasing them for larger ones
  • Authorizes additional funding for antitrust enforcement agencies.

H.R.3849 – ACCESS Act of 2021

  • Data portability: Requires covered platforms to maintain interfaces (a tool for interacting with the platform) that meet certain standards and which third parties can use to access data with consent from a user
  • Interoperability: Requires covered platforms to maintain interfaces that meet certain standards which facilitate interoperability with other businesses
  • Standards for portability and interoperability include:
    • Data security
    • Consistent interface that can only be changed by petitioning the FTC or when there is an imminent risk to privacy or security
  • Outlaws monetization by covered platforms of business user data
  • Requires the FTC to setup a technical committee to assist it with the implementation and technical aspects of the portability and interoperability requirements of this act.

H.R.3460 – State Antitrust Enforcement Venue Act of 2021

  • Modifies rules governing antitrust cases to give greater control to state attorney generals over where their case is litigated.
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