U.S. President Joe Biden delivers remarks prior to signing an executive order on “promoting competition within the American economy” during an event within the State Dining Room on the White House in Washington U.S., July 9, 2021.
Evelyn Hockstein | Reuters
Joe Biden has positioned himself as a pro-competition president, delighting progressives by installing their wish list of liberal antitrust enforcers early in his administration.
But this fall, his digital competition agenda will truly be put to the test, as the primary of the federal government’s tech anti-monopoly cases is finally argued in federal court.
Tuesday marked a convergence of several long-awaited actions in competition policy and enforcement. First, the Federal Trade Commission announced its long-awaited antitrust suit against Amazon. Shortly after that, the Federal Communications Commission chair announced a proposal to reinstate net neutrality rules, which prohibit web service providers from favoring certain web sites over others.
At the identical time, the Department of Justice has been litigating its own monopolization suit against Google in Washington, D.C. District Court, three years after the initial criticism was filed in the course of the last administration. The Justice Department’s second antitrust challenge against Google is ready to go to trial early next yr.
During Biden’s presidency, loads of ink has been spilled over his antitrust enforcers’ boundary-pushing approaches, particularly as they eyed deals and potential misconduct within the tech industry. But until this month, not one of the federal tech monopoly trials had kicked off.
Before the swearing in of Democrat Anna Gomez this week, the FCC had been deadlocked, unable to maneuver forward with any measures that couldn’t gain the support of a minimum of one in every of its Republican commissioners.
Antitrust cases and government rulemaking are famous for his or her often long timelines. But with all of those actions now set in motion, Americans are one step closer to seeing how the Biden administration’s competition vision plays out.
Tim Wu, who previously served within the White House as a key architect of the Biden administration’s competition agenda, said in an interview that most of the seeds planted early within the administration, if not yet bearing fruit, are a minimum of “sprouting.”
Wu said that within the early days of his time on the White House, the administration got here up with what was called the “grand unified theory of antitrust revival.” It included appointing strong enforcers and starting the White House Competition Council.
Biden laid out his competition goals in an executive order issued in 2021, which urged the FCC to revive net neutrality rules and for the FTC to “challenge prior bad mergers,” amongst other things.
For the reason that time of the chief order, Hannah Garden-Monheit, director of Competition Council policy on the White House, said those principles have “built up loads of momentum” and have “develop into embedded and institutionalized within the work of the federal government.”
Whilst several prongs of competition policy take shape, the Biden administration is up against the clock. Because the 2024 presidential election approaches, the administration faces the potential of losing its likelihood to follow through on among the actions it has spearheaded.
That timeline could also be particularly concerning for the power to implement and uphold net neutrality rules, on condition that the FCC did not have a Democratic majority in a position to advance the rulemaking until just this week. Wu and other net neutrality advocates have blamed the telecom industry for opposing Biden’s initial FCC nominee, Gigi Sohn, holding up her nomination for well over a yr until she ultimately withdrew. (CNBC parent company NBCUniversal is owned by web service provider Comcast.)
Gigi Sohn testifies during a Senate Commerce, Science, and Transportation Committee confirmation hearing examining her nomination to be appointed Commissioner of the Federal Communications Commission on February 9, 2022 in Washington, DC.
Peter Marovich | Getty Images
Biden’s unwillingness to pivot to a different candidate earlier also meant the FCC remained deadlocked for the primary half of his term as president.
Still, Wu said that backing down from a certified candidate is “not Biden’s style.”
Irrespective of when the administration changes hands, Wu said he’s confident that net neutrality can prevail. He called the repeal of the principles under Trump’s FCC an “outlier” and believes Republicans don’t have anything to achieve at this point in pushing for repeal.
“I take into consideration Republicans — they don’t love Google, Facebook doing censorship — they usually really don’t love their cable company doing it either,” Wu said. “There is no constituency right away for the repeal of net neutrality.”
On the FTC, Chair Lina Khan finally moved ahead in filing the agency’s antitrust suit against Amazon, accusing it of illegally maintaining a monopoly by punishing sellers that supply lower prices elsewhere and “effectively” requiring them to make use of Amazon’s achievement services. Amazon’s general counsel has called the suit “fallacious on the facts and the law.”
Federal Trade Commission Chair Lina Khan testifies before a House Judiciary Committee hearing on Oversight of the Federal Trade Commission, on Capitol Hill in Washington, D.C., July 13, 2023.
Kevin Wurm | Reuters
“This criticism focused on behaviors that courts have up to now found clearly to be violations of the antitrust laws,” Bill Baer, who has served as the highest antitrust official at each the FTC and DOJ in several Democratic administrations, said. “She didn’t need to incorporate theories where the courts either have not reached or about which they have been more skeptical up to now.”
Wu said the more narrow approach didn’t surprise him, partially because Khan is “more restrained than people think she is.”
“Frankly, it is not exotic in any respect,” Wu said of the Amazon criticism. “It’s plain vanilla, Predominant Street, what we might call a consumer welfare case.”
While Khan and Jonathan Kanter, her counterpart on the DOJ, have said they aim to bring cases that they will win, they’ve indicated they’re also willing to bring riskier complaints to push the boundaries of the law.
“They’re adopting more of a baseball approach than a perfectionist approach,” Wu said. “And if you’ve gotten someone who’s batting .500, .700, that is a fairly good hitter, especially in the event that they’re swinging for home runs.”
“It’s a critical moment within the courts deciding how the antitrust laws apply to Big Tech,” Baer said. “The outcomes of those pending and future cases will tell us rather a lot about what the principles of the road are going forward.”
Advocates of reforming antitrust laws have said that it is important for Congress to make clear the law, but antitrust reform has stalled in Congress after a serious push last yr fizzled out.
Wu said a key “uncompleted part” of the grand master plan within the White House was appointing more antitrust enforcement-minded judges.
In 10 years, Garden-Monheit said she thinks Americans will look back at this moment “as an actual inflection point” where the president opted to show the page on “40 years of laissez-faire, trickle-down economics, lax enforcement of antitrust laws.”
“I hope that is the direction that we’ll proceed to see for a long time going forward, identical to we have turned the page on a long time of past failed approach,” Garden-Monheit said.
“Win or lose, we do not know what’s going to occur in any of those cases,” Wu said. “But I feel we’ll look back at this and say that non-enforcement was only a blip.”
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