DOJ Antitrust Chief Says Other Tech Recusals Are Possible
DOJ Antitrust Division Chief Makan Delrahim could recuse himself from other tech industry investigations, he told reporters Wednesday, after news of his Google probe recusal. Asked after a Media Institute event if there could be other conflicts, he said, “There could be perhaps, but we’ll see. I’ll let you all know.” The division is sorting through tech companies to see if there are any “appearance” issues, he said.
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Delrahim's prepared remarks defended DOJ's approval of T-Mobile/Sprint (see 2001270034). The division is awaiting a U.S. District Court for the Southern District of New York ruling on several states’ lawsuit challenging the deal. If SDNY sides with the states, it creates the risk that a small subset of states, or perhaps even just one, could undermine future beneficial transactions approved by two expert federal agencies, said the antitrust chief. His remarks were posted after the event.
“If you find this situation odd, you're not alone,” Delrahim said. “Courts should not award any private party, including the states, relief that is incompatible with relief secured by the federal government,” which has been settled by Supreme Court precedent. He noted it isn’t DOJ’s position that states lack standing to sue for antitrust violations or seek relief different from relief pursued by the federal government.
Delrahim was asked if he expects the division to reach the same conclusion for the ASCAP and BMI consent decrees (see 1911050064) that it did for Paramount's (see 1911220068). He noted other obscure consent decrees DOJ has terminated, saying the Paramount one resulted in regulations for a particular industry never granted by Congress. The pact regulated how some movie studios distributed films to theaters.
“I didn’t think it was appropriate for us to do that, and frankly, it probably has prohibited a lot of innovative consumer products,” Delrahim said of Paramount. “A 75-year-old consent decree shouldn’t prevent the free market and the consumer from benefiting.” The underlying basis for the Paramount consent decree was a price-fixing and market division conspiracy that no longer applies, he said.
Though Delrahim cited some relevance between ASCAP and Paramount, he emphasized they affect two totally different industries. “I would not read into that at all between those two reviews,” he said. Consent decrees concerning the horseshoe industry and music roles for player pianos were terminated, he noted. “There’s a lot of great consent decrees that we’ve had that we are addressing each day.”
FTC Commissioner Noah Phillips was asked at a Technology Policy Institute event Wednesday about Delrahim’s contention it would be a mistake not to consider privacy implications in antitrust reviews. If Google tried to buy DuckDuckGo, a search engine company that makes a point of competing on privacy, that would require a close look from the FTC, Phillips said. But privacy isn’t a traditional antitrust element like price because it’s so subjective, he said. Some people like targeted ads while others find them creepy, the GOP commissioner added.
Phillips was asked if he's concerned about Facebook buying and growing nascent social media companies. The FTC is always interested in any firms that can be characterized as dominant in any given market using mergers and acquisitions in a way that’s anticompetitive, Phillips said. Every fact of every case differs, though, he added, saying it won’t prejudge any transaction. Sometimes complaints arise from companies being out-competed, he said: If the FTC brings a case, it’s always based in part on input from competitors in the marketplace.
Phillips said his issue with calls to break up big tech companies is that the complaints aren’t always tethered to a market problem intervention is aimed to fix. A problem must be identified first, he said.