Before Senate Hearing With Delrahim, Simons Readies Tech Antitrust Guidance

The FTC is investigating Facebook on antitrust grounds, and DOJ is probing industry competition. State enforcers are doing investigations. All but two state attorneys general are participating in an investigation of Google’s ad business, and a separate group of state enforcers is probing Facebook (see 1908200066). Friday, the House Judiciary Committee sent requests for information to Alphabet, Amazon, Apple and Facebook.

The FTC’s guidance document should be similar to competitor collaboration guidelines, Simons said. He wants "a framework for evaluating tech platforms similar to the way the CCGs did for joint ventures, and that we can provide a structure to guide our existing and future tech platform cases.” The FTC is working with DOJ to develop vertical merger guidelines, “but it is too early to say whether that effort will be successful,” he said.

FTC ability to police tech industry competition is in question, Sen. Josh Hawley, R-Mo., told reporters last week, citing concerns about industry capture and agency structure. Congress should decide whether the FTC's “up to the task” before granting additional resources. On state probes, the former Missouri AG said most state antitrust laws encompass a lot of the same laws for federal enforcers, allowing steep civil and criminal penalties and injunctive relief. Courts under state law can order unwinding of acquisitions, he said, saying with 50 states and jurisdictions involved, “that’s a lot of tools at their disposal.”

The House Judiciary RFIs aren’t on the same level as subpoenas, in terms of legal obligation. If the companies don't comply, the committee can resort to subpoenas. If those go unanswered, the committee can take the issue to court. The committee expects the “companies to comply, and we look forward to working with them on an appropriate production schedule,” an aide said Friday. “It’s a bipartisan congressional request,” said an aide for House Antitrust Subcommittee Chairman David Cicilline, D-R.I. “Companies typically comply with these requests to avoid a subpoena, which they must report. Noncompliance with requests would warrant a bipartisan subpoena.” Alphabet, Amazon, Apple and Facebook didn’t comment. A Google spokesperson cited a recent company blog post on how the platform benefits consumers.

“There is growing evidence that a handful of corporations have come to capture an outsized share of online commerce and communications,” said Chairman Jerry Nadler, D-N.Y., in a statement. “It is increasingly difficult to use the Internet without relying on these services.” This "information is key in helping determine whether anticompetitive behavior is occurring, whether our antitrust enforcement agencies should investigate specific issues and whether or not our antitrust laws need improvement to better promote competition,” said ranking member Doug Collins, R-Ga.

The RFIs seek internal emails, documents on government probes of the companies, organizational charts, competitor lists, financial statements and reports, and lists of cases alleging anticompetitive behavior. The documents request material submitted to DOJ and the FTC in the past decade involving the Clayton Act.

The letter to Alphabet requests documents on Google buying DoubleClick, AdMob, YouTube and Android, plus any competitive threats posed by those companies. The Amazon letter probes the company’s algorithms and policies on pricing and search rankings. The Apple request partly concerns App Store policies and decisions to remove certain apps. The Facebook correspondence questions the platform’s acquisitions of Instagram, WhatsApp and Onavo, including documents about competitive threats.