House Democrats Cite Duty to Protect Antitrust Laws; Collins Offers Caution
Congress has a constitutional duty to ensure antitrust law is working properly within the digital economy, said House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and House Antitrust Subcommittee Chairman David Cicilline, D-R.I., during a hearing Tuesday (see 1906100029). It was the first in a series of tech competition investigation hearings, which ranking member Doug Collins, R-Ga., said he “firmly” supports. Collins said any potential legislation from the probe “should be consistent with keeping the free market free.” Companies “that offer new innovations, better solutions and more consumer benefit at lower prices often become big -- to the benefit of society,” he said.
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Cicilline told reporters this is “just the beginning.” The probe will include a "whole series of hearings, document requests, witnesses,” he said. He's “confident” the committee will conclude the investigation and complete a report this Congress. The approach is to examine what Congress can do to make these markets more competitive, Cicilline told reporters, whether that’s statute updates, fixing framework deficiencies or increasing agency resources. The ability to unwind any retrospective mergers is “pretty limited,” but Congress needs to understand why certain deals might have created competition issues, he said.
Rep. Matt Gaetz, R-Fla., raised the possibility of altering Communications Decency Act Section 230. He claimed the statute requires tech platforms to show neutrality to secure liability protections. He hopes Congress won’t “exclude from our gaze” the other statutory advantages tech has over competitors.
Newspapers are responsible for what’s published, testified News Media Alliance President David Chavern. But platforms can monetize content without any responsibility for quality, he added. This “journalism crisis” is also a “democracy crisis,” Nadler said, claiming “a single algorithm” can determine newspaper publisher revenue.
Cicilline and Collins' legislation would let news publishers collectively bargain with tech platforms, which they say are siphoning advertising revenue without paying for newspaper content. Rep. Kelly Armstrong, R-N.D., asked why Congress should enact such legislation when it can instead enforce antitrust laws.
The bill is a good short-term solution while the larger issue is addressed, said News Corp General Counsel David Pitofsky: One of the pitfalls of antitrust law is it doesn’t properly account for something like privacy as a quality issue. The bill is the “lightest touch” approach available for simply empowering publishers to stand up for themselves, Chavern said.
Lawmakers should consider nondiscrimination and interoperability policy tools to address the news industry’s concerns, said Public Knowledge President Gene Kimmelman. Those approaches were successfully used to address competition concerns within the broadcast and cable industries, he noted.
FTC and DOJ enforcers should unwind bad deals and sue to stop exclusionary practices, testified Open Markets Institute Enforcement Strategy Director Sally Hubbard. Google and Facebook are playing the game, while also controlling it, she said.
Lawmakers should consider options outside of antitrust exemptions, said Computer and Communications Industry Association Vice President-Law and Policy Matt Schruers. He acknowledged “the value that digital services provide to users, content publishers, and advertisers is considerable, but have also affected some traditional business models, including news producers.”