📋 Tender Overview
House Antitrust Subcommittee chairman David Cicilline and ranking member Ken Buck introduced a package of legislative measures called A Stronger Online Economy Opportunity Innovation Choice.1 The legislation is focused on large technology platforms and follows the House Judiciary Committees HJC majority staff report in 2020 on Amazon Apple Facebook and Google.2 Many of the HJC reports recommendations are reflected in the legislative measures. Each of the five pieces of legislation is co-sponsored by a Democrat and a Republican.Legislation for Covered PlatformsFour out of the five pieces of legislation are designed only to apply to the largest companies covered platforms. Under the proposed legislation the U.S. Department of Justice DOJ and the Federal Trade Commission FTC would have the authority to declare companies to be a covered platform if they 1 have 50 million monthly active users or 100000 monthly active business users 2 have sales or a market capitalization exceeding 600 billion and 3 are a critical trading partner.3 These requirements would mean only a very small number of companies would have covered platforms. The bills would give wide-ranging enforcement authority to the DOJ FTC state attorneys general and private parties and provides for numerous types of injunctive and monetary relief.The American Innovation and Choice Act. This legislation would prohibit covered platforms from engaging in various forms of discriminatory conduct including conduct that advantages the covered platform operators own products services or lines of business over those of another business user or excludes or disadvantages the products services or lines of business of another business user.4 The legislation also establishes a Bureau of Digital Markets inside the FTC.5The Platform Competition and Opportunity Act. This legislation prohibits acquisitions by covered platforms unless the platform can demonstrate by clear and convincing evidence that the acquired company does not 1 compete with the covered platform 2 represent potential or nascent competition 3 enhance the covered platforms market position or 4 enhance the covered platforms ability to maintain its market position.6 Competition is defined to include competition for user attention.7The Ending Platform Monopolies Act. Covered platforms are prohibited from having a line of business that 1 utilizes the covered platform for the sale or provision of products or services 2 offers a product or service that a business user needs to purchase for access to or preferred placement on the covered platform or 3 gives rise to a conflict of interest an incentive to advantage the covered platforms own products on the platform over those of competitors.8 Depending on how these prohibitions are interpreted and enforced enactment of this bill could result in the breakup of large technology companies.The Augmenting Compatibility and Competition by Enabling Service Switching ACCESS Act. Covered platforms are required to maintain interfaces to facilitate portability of user data and interoperability with competing businesses.9 The FTC is to oversee this process including establishing platform-specific standards and setting up technical advisory committees to assist in the standards-making process.10 The committees must include among others representatives from competing businesses.11HSR Filing Fee Reform5. Merger Filing Fee Modernization Act MFFMA.12 This bill mirrors Senator Amy Klobuchars legislation which has already been passed out of committee13 to amend the Hart-Scott-Rodino Antitrust Improvements Act.14 The MFFMA introduces a more graduated fee structure for premerger notifications. Notably smaller transactions will pay a smaller filing fee reduced from 45000 to 30000 while large transactions could pay much larger fees a maximum of 2.25 million up from a current maximum of 280000 which will be adjusted for inflation. HSR filing fees fund most of the operations of the DOJ Antitrust Division and the FTC and the MFFMA authorizes higher appropriations for both.The proposed legislation demonstrates the strong congressional interest in reforming the antitrust law as they apply to large technology companies. Given the dramatic changes envisaged the bills will attract much discussion as they move through the legislative process and extensive hearings are expected. We will provide further updates and analysis as the legislation continues to take form.If you have any questions about this legislation or other congressional activity on antitrust please feel free to contact Beau Buffier Jamillia Ferris Jonathan Jacobson Ben Labow Scott Sher and Josh Soven or another member of the antitrust and competition practice at Wilson Sonsini Goodrich Rosati.
