FTC, DOJ Chiefs Acknowledge Squabbling Over Tech Investigations
The FTC and DOJ haven’t fully honored their clearance agreement while investigating big tech platforms for competition reasons, FTC Chairman Joe Simons said Tuesday. DOJ Antitrust Division Chief Makan Delrahim said during the Senate Antitrust Subcommittee hearing he can’t deny instances where time has been “wasted” on such squabbles.
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Chairman Mike Lee, R-Utah, said it’s wasteful and impossible for agencies to take a piecemeal approach on antitrust investigations. The risk is that both agencies want the same slice of the same pie at the same time, he said.
The bigger picture issue is that antitrust enforcers have been unwilling to properly take on modern monopoly problems, said ranking member Amy Klobuchar, D-Minn. It isn't antitrust enforcers reaching for the same slice of pie, but consumers getting a pie to the face if government doesn’t act, she said, preferring split investigations rather than none. The reason for splitting responsibilities could be lack of resources, Klobuchar told reporters: “There’s no way they can meet these companies even halfway in investigating them if they don’t have the resources.”
The enforcers gave “astounding” answers about their “convoluted” decision process, Sen. Josh Hawley, R-Mo., told us. During the hearing, he questioned whether Congress should “clearly designate enforcement authority to one agency.” Delrahim said it’s "perfectly ... appropriate area of inquiry." Hawley told us the FTC's acting as enforcer, adjudicator and regulator could mean too many things “jammed into one place.” He asked whether the commission is completing any one task well. Asked whether he wants to take the agency off the tech beat, he said it’s unclear.
Simons and Delrahim agreed it’s a waste of resources for agencies to investigate the same conduct by the same company. The FTC’s antitrust investigation of Facebook remains active, Simons said, and Justice is investigating the tech industry broadly. Delrahim said his office continues coordinating with the 50 state attorneys general who recently opened an antitrust investigation of Google. “We” have issued civil investigative demands, Delrahim said, noting it’s important DOJ and state AGs don’t “trip over each other” early in the investigation.
The FTC’s tech task force remains focused on analyzing big tech platforms, said Simons, who solicited concerns from the public about the industry. The only open investigation he would confirm was Facebook, since the company announced it. The FTC didn’t interview Facebook CEO Mark Zuckerberg or Chief Operating Officer Sheryl Sandberg during the privacy investigation, Simons told Hawley. He again argued the $5 billion settlement was a better conclusion than the agency could have got in court.
The ASCAP and BMI consent decrees are “important,” Delrahim told Sen. Patrick Leahy, D-Vt. DOJ has more than complied with the Music Modernization Act, which directs it to give reasonable notice to the committee if it moves to terminate the decrees, Delrahim said. Before public comment was opened, the department notified committee leaders in both chambers of consent decree activity, he said. Delrahim told Lee he estimates that within three to six months, DOJ will have "formulated some viewpoints" on the consent decrees it can share with the subcommittee.