On June 11, 2021, House Antitrust Subcommittee chairman David Cicilline and ranking member Ken Buck introduced a package of legislative measures called "A Stronger Online Economy: Opportunity, Innovation, Choice."¹ The legislation is focused on large technology platforms and follows the House Judiciary Committee's (HJC) majority staff report in 2020 on Amazon, Apple, Facebook, and Google.² Many of the HJC report's recommendations are reflected in the legislative measures. Each of the five pieces of legislation is co-sponsored by a Democrat and a Republican.

Legislation for Covered Platforms

Four out of the five pieces of legislation are designed only to apply to the largest companies ("covered platforms"). Under the proposed legislation, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) would have the authority to declare companies to be a "covered platform," if they 1) have 50 million monthly active users or 100,000 monthly active business users; 2) have sales or a market capitalization exceeding $600 billion; and 3) are a "critical trading partner."³ These requirements would mean only a very small number of companies would have "covered platforms." The bills would give wide-ranging enforcement authority to the DOJ, FTC, state attorneys general, and private parties, and provides for numerous types of injunctive and monetary relief.

1. The American Innovation and Choice Act. This legislation would prohibit covered platforms from engaging in various forms of "discriminatory conduct," including conduct that "advantages the covered platform operator's own products, services, or lines of business over those of another business user" or "excludes or disadvantages the products, services, or lines of business of another business user."⁴ The legislation also establishes a Bureau of Digital Markets inside the FTC.⁵
2. The Platform Competition and Opportunity Act. This legislation prohibits acquisitions by covered platforms unless the platform can demonstrate, by clear and convincing evidence, that the acquired company does not 1) compete with the covered platform; 2) represent potential or nascent competition, 3) enhance the covered platform's market position; or 4) enhance the covered platform's ability to maintain its market position.⁶ Competition is defined to include competition for "user attention."⁷
3. The Ending Platform Monopolies Act. Covered platforms are prohibited from having a line of business that 1) utilizes the covered platform for the sale or provision of products or services; 2) offers a product or service that a business user needs to purchase for access to or preferred placement on the covered platform; or 3) gives rise to a conflict of interest (an incentive to advantage the covered platform's own products on the platform over those of competitors).⁸ Depending on how these prohibitions are interpreted and enforced, enactment of this bill could result in the "breakup" of large technology companies.
4. The Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act. Covered platforms are required to maintain interfaces to facilitate portability of user data and interoperability with competing businesses.⁹ The FTC is to oversee this process, including establishing platform-specific standards and setting up technical advisory committees to assist in the standards-making process.¹⁰ The committees must include, among others, representatives from competing businesses.¹¹

HSR Filing Fee Reform

5. Merger Filing Fee Modernization Act (MFFMA).¹² This bill mirrors Senator Amy Klobuchar's legislation, which has already been passed out of committee,¹³ to amend the Hart-Scott-Rodino Antitrust Improvements Act.¹⁴ The MFFMA introduces a more graduated fee structure for premerger notifications. Notably, smaller transactions will pay a smaller filing fee (reduced from $45,000 to $30,000) while large transactions could pay much larger fees (a maximum of $2.25 million, up from a current maximum of $280,000), which will be adjusted for inflation. HSR filing fees fund most of the operations of the DOJ Antitrust Division and the FTC and the MFFMA authorizes higher appropriations for both.

The proposed legislation demonstrates the strong congressional interest in reforming the antitrust law as they apply to large technology companies. Given the dramatic changes envisaged, the bills will attract much discussion as they move through the legislative process and extensive hearings are expected. We will provide further updates and analysis as the legislation continues to take form.

If you have any questions about this legislation or other congressional activity on antitrust, please feel free to contact Beau Buffier, Jonathan Jacobson, Ben Labow, or another member of the antitrust and competition practice at Wilson Sonsini.

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^[1]Press Release, House Lawmakers Release Anti-Monopoly Agenda for “A Stronger Online Economy: Opportunity, Innovation, Choice” (June 11, 2021), https://cicilline.house.gov/press-release/house-lawmakers-release-anti-monopoly-agenda-stronger-online-economy-opportunity.

^[2]Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations (Oct. 4, 2020), https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf.

^[3]See, e.g., American Innovation and Choice Act, H.R. 3816, 117th Cong. § 2(a)-(b) (2021).

^[4]Id. at § 2(d).

^[5]Id. at §§ 4, 6.

^[6]Platform Competition and Opportunity Act, H.R. 3826, 117th Cong. § 2 (2021).

^[7]Id. at § 2(c).

^[8]Ending Platform Monopolies Act, H.R. 3825, 117th Cong. § 2 (2021).

^[9]Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, H.R. 3849, 117th Cong. §§ 3-4 (2021), available at https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ACCESS%20Act%20-%20Bill%20Text%20%281%29.pdf.

^[10]Id. at §§ 6-7.

^[11]Id. at § 7(b).

^[12]Merger Filing Fee Modernization Act, H.R. 3843, 117th Cong. (2021).

^[13]Merger Filing Fee Modernization Act, S. 228, 117th Cong. (2021).

^[14]15 U.S.C. § 18a.