Policy Briefing - House Antitrust Proposals

The following bills create a new designation, the “covered platform”, that is utilized in several of the bills in this package. A “covered platform” is a status that can be designated by the FTC or Department of Justice upon an online platform that meets all three of the following criteria:

1. has at least 50 million active monthly users in the U.S.;
2. has at least 100 thousand active monthly business users in the U.S.;
3. and is owned or controlled by someone with a market capitalization of over $600 billion.

H.R.3816 – American Choice and Innovation Online Act

• • Prohibits covered platforms from:
    • Engaging in conduct on their platform that advantages their own products and services, disadvantages other business user products or services, or discriminates between similar business users
    • Utilizing non-public data generated by business users
    • Restricting business users from accessing data they generated
    • Interfering with a business user’s pricing strategy
    • Restricting or impeding interoperability within their platform
  • An exception to the above restrictions is made if a covered platform can clearly and convincingly demonstrate that a practice either:
    • Does not harm the competitive process
    • Is narrowly tailored and cannot be achieved “through a less discriminatory means”, and was necessary to comply with federal and state law or to protect user privacy and data
    • Increases consumer welfare (per Bentz amendment)

H.R.3825 – Ending Platform Monopolies Act

• Prohibits covered platforms from owning businesses, other than the covered platform itself, that:
  • Utilize their platform for the sale of their own products or services
  • Offer a product or service that a business user would need to purchase for access or preferred placement on the covered platform
  • Create a conflict of interest.

H.R.3826 – Platform Competition and Opportunity Act of 2021

• Restricts acquisitions by covered platform of current or potential competitors, or acquisition that would enhance the covered platforms market position
• Restricts acquisitions by covered platform of current or potential competitors, or acquisition that would enhance the covered platforms market position
• An exception is made permitting platforms to acquire other entities if the assets are valued at less than $50 million (per Ross amendment).

H.R.3843 – Merger Filing Fee Modernization Act of 2021

• Adjusts the fees associated with filing mergers by reducing them for smaller mergers and increasing them for larger ones
• Authorizes additional funding for antitrust enforcement agencies.

H.R.3849 – ACCESS Act of 2021

• Data portability: Requires covered platforms to maintain interfaces (a tool for interacting with the platform) that meet certain standards and which third parties can use to access data with consent from a user
• Interoperability: Requires covered platforms to maintain interfaces that meet certain standards which facilitate interoperability with other businesses
• Standards for portability and interoperability include:
  • Data security
  • Consistent interface that can only be changed by petitioning the FTC or when there is an imminent risk to privacy or security
• Outlaws monetization by covered platforms of business user data
• Requires the FTC to setup a technical committee to assist it with the implementation and technical aspects of the portability and interoperability requirements of this act.

H.R.3460 – State Antitrust Enforcement Venue Act of 2021

• Modifies rules governing antitrust cases to give greater control to state attorney generals over where their case is litigated.