Simons Says FTC's Investigating Major Platforms Other Than Facebook

The agency plans to take a “fresh look” at its consumer welfare standard for antitrust enforcement and potential alternatives, Simons said. Commissioner Rebecca Kelly Slaughter told reporters she’s open to alternatives to the consumer welfare standard, which she noted isn’t in a statute: “It is what has evolved since the '70s or '80s to be how we think about things. I think you can both expand how aggressive enforcement is under the current statutory standards and think about whether there are different and better standards that we could use.”

On balance over time, the consumer welfare standard “has served us quite well, and it’s a flexible standard,” Commissioner Noah Phillips told us. He would want to see what alternatives are presented, he said.

Simons was asked about support from Slaughter and Commissioner Christine Wilson for a 6(b) study (see 1910280055) on the tech industry’s ad-related data collection. “We’re looking at options,” Simons told reporters. A 6(b) study, which carries subpoena authority, allows the commission to request nonpublic information from companies. Many people have different opinions about the agency’s 6b study options, Phillips told us: “My question with any 6b study is what are the tradeoff for doing another 6b study?”

Simons offered details about the agency’s plans to issue antitrust guidance for digital markets. He expects to issue vertical merger commentary along the lines of the 2006 commentary on horizontal merger guidelines. The agency will file an addendum to the 2006 guidelines to deal with nascent competition and analyze non-price aspects like privacy and quality, he said. It’s possible the agency will issue vertical guidelines, as well, but “no promises,” he said. The FTC will try to collaborate with DOJ on “all of this,” he said.

DOJ is working with the FTC on “all matters," including vertical guidelines, Antitrust Division Chief Makan Delrahim told reporters. The hope is for joint merger guidelines, he said: “The discussions have been very constructive, and we seem to be seeing the world through the same prism.”

DOJ's open to examining antitrust laws, Deputy Attorney General Jeffrey Rosen said. Individuals, including lawmakers, have “raised concerns whether laws apart from the antitrust statutes may have produced unwanted results or otherwise need changing, and we are open to engaging on legislative proposals as well,” he said. He noted DOJ’s antitrust review of the tech industry hasn’t “reached any ultimate conclusions yet. We will follow the evidence, and if it is warranted, we will enforce the law and seek the appropriate remedies.” Citing the Microsoft antitrust case of the late 1990s, he said another technological cycle is occurring.

Democratic leaders in the Senate introduced a set of privacy principles Monday. The group -- Senate Commerce Committee ranking member Maria Cantwell, D-Wash.; Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif.; Senate Banking Committee ranking member Sherrod Brown, D-Ohio; and Senate Education Committee ranking member Patty Murray, D-Wash. -- offered a proposal calling for private rights of action, civil penalty authority on first offenses and “streamlined” rulemaking authority in federal legislation. Both Cantwell and Senate Commerce Committee Chairman Roger Wicker, R-Miss., insisted bipartisan discussions are ongoing. The U.S. Chamber of Commerce urged Monday that bipartisan effort to continue: “Both Republicans and Democrats agree that giving consumers certainty about how their data is used and shared is critical. We will not achieve that goal unless both parties work together,” said Senior Vice President Tim Day.