By Can Şimşek
1) What do you think of the recent Executive Order signed by President Biden? Will it change the way that the platforms are regulated fundamentally?
The recent Executive Order is an effort to ensure that different parts of the executive branch take into account competition policy as they implement their day-to-day responsibilities. This goes beyond the Antitrust Division and the Federal Trade Commission and their usual responsibilities, but instead focuses on the broad way in which the laws executed by the executive branch might impact competition. It certainly isn’t specific to the platforms—even though they of course are mentioned in the order—and reflects the view that market concentration is a broad problem in the U.S. economy. The order itself doesn’t set policy and instead urges action pursuant to statutory authority and establishes deadlines for a number of detailed information reports on the state of the U.S. economy. It clearly favors more rulemaking by agencies like the FTC and that is where we might look to changes to how platforms are regulated, but that is likely to take a substantial amount of time to roll out.
2) Could you explain why you think that the five antitrust bills that were introduced in the House represent a dramatic change in the US antitrust law?
I want to push back on the question a little. I think focusing on “antitrust law” is too narrow a framing for what is happening here. U.S. antitrust law doesn’t condemn successful big businesses as such. As Sen. Amy Klobuchar notes in her recent book, antitrust was a key issue in the 1912 U.S. presidential election. Then Governor Woodrow Wilson, who would win that election, separated trusts— combinations of businesses that used to compete with each other —from successful big firms. As to the latter, Wilson said: “I am not jealous of the size of any business that has grown to that size. I am not jealous of any process of growth, no matter how huge the result, provided the result was indeed obtained by the processes of wholesome development, which are the processes of efficiency, of economy, of intelligence, and of invention.” Wilson was president when the Clayton Act and the Federal Trade Commission Act were enacted. The House bills move away from Wilson’s formulation and move towards regulating the leading platforms as public utilities and that is what makes them a dramatic change.
3) How do you think these different laws will work together? In your opinion, which bill contains the most remarkable change, and is it for better?
The House has six bills on the table, while the Senate is building up its own set. In the House, one bill, H.R. 3825, the Ending Platform Monopolies Act, squeaked through the House Judiciary Committee by a 21-20 vote and that suggests that bill faces the toughest path in the full House. That bill would produce substantial changes in the businesses of Amazon, Google and Apple and perhaps more. While the language isn’t completely clear, it would seem to require Amazon to separate its third-party platform business from its original inventory business. The draft bill would bar a covered platform from operating another line of business “that utilizes the covered platform for the sale or provision of products or services.” Again, I am not fully sure on what that means but think of the range of apps that Apple has on iOS (Safari, AppleMusic, Find My and much, much more), all of which would seem to be covered by this language. To be clear, I do not think that that is for the better or that that is what consumers want from their smartphones.
Randy Picker is the James Parker Hall Distinguished Service Professor of Law at The University of Chicago Law School, where he teaches courses on, among other things, antitrust, copyright, tech policy and the regulation of platforms and networks. You may visit Professor Picker’s webpage to find out about his work.