House Panel Passes Antitrust Reform Bills After Heated Debate

WASHINGTON – A heated debate took place in the House Judiciary Committee markup of a merger fee legislation that skated through the Senate, but their congressional counterparts took three hours Wednesday to come close to an agreement.

The single amendment bill entitled, Merger Filing Fee Modernization Act of 2021, passed by a 29-12 vote.

This was the first of six bills to be marked up yesterday in a legislative package that seeks to reel in the power of Big Tech companies like Amazon, Facebook, Apple and Google. 

The crux of the argument against the merger fees bill was made by the majority of the Republicans who spoke up, attempting several amendments focused on Big Tech and Big Government. 

The majority of the arguments against the bills revolved around focusing the bill to purposefully reign in Big Tech’s power in market competition, with several Republicans making claims that the markups were rushed. They also claimed that the bills did not clearly define the role of the federal agencies involved in their enforcement nor do they zero in enough of the online giants. 

It seemed the latter was particularly so in the case of the online platforms censoring conservative voices, said Ranking Member Jim Jordan, R-Ohio, which has been a major driving point behind Republicans calling for the reeling in of Big Tech.

Introduced last week, the five-bill package is a product of an 18-month investigation by the House Antitrust Subcommittee into Big Tech. The investigation unveiled the “gross abuses” of dominance by these online giants, said the subcommittee Ranking Member Ken Buck, R-Colo., yesterday. The State Antitrust Enforcement Venue Act, which was introduced in May and passed yesterday by 34-7, was also included in the package. 

Rep. Chip Roy, R-TX, cosponsored the first bill because there has not been an update to the fees in two decades. He also raised his “conflicted” concern that the power the bill will hand to the Federal Trade Commission could go beyond their purview of antitrust law, a set of federal statutes governing competition in the marketplace. 

The Federal Trade Commission and Department of Justice are the two agencies that oversee antitrust enforcement, prohibiting monopolies and their abuses of dominance. 

However, the unanimously passed amendment to this bill Rep. Victoria Spartz, R-Ind., offered set “guardrails” to increase transparency, making the regulatory agencies report to Congress how exactly they are using the funds collected. Spartz defended the bill, acknowledging there may be hammering out to do in conference with the Senate, but that the package is an “incremental step in the right direction.” 

It also proportionately distributes the burden of the filing fees between smaller and larger companies, she explained. She said, last year, the FTC spent $167 billion to finance its functions — $65 billion were through appropriations, the remaining $102 billion were financed through these “user fees.” The smaller companies “[paid] more of this effort” than the larger ones. 

Her amendment not only increases transparency and a fairer distribution of this burden but “hopefully” generates more user fee revenue than would be needed through appropriations.

The bill sets up technical committees at the FTC for each of the “covered platforms,” but Jordan had an issue that the makeup of these committees was left at the discretion of the FTC and would not be disclosed as the U.S. Federal Advisory Committee Act, which governs and has oversight on such committees, would not apply to these technical committees.  

He claimed that “In other words, it’s all done in secret,” and those making the decisions over these platforms will be “secret technical committees for each business made up of leftwing individuals.”

 “Overall, the power this gives to the FTC, Big Tech working together with Big Government doesn’t address the issue of breaking these companies up,” Jordan charged, adding that it does it tackle the censorship of conservative voices that so many of his constituents care about. 

“This legislation represents a scalpel, not a chainsaw, to deal with the most important aspects of antitrust reform: giving the [DOJ] and [FTC] the tools they need to restore the free market, incentivize innovation and give small businesses a fair shot against oligarchs like Jeff Bezos and Mark Zuckerberg,” Buck countered. 

Despite its objective to curb Big Tech’s power, Jordan said the package does not define the “covered platforms” with enough specificity, also leaving it much up to the discretion of the agencies, and puts into question the democrats actual intent to really go after Big Tech. 

Subcommittee Chairman David Cicilline, D-R.I., explained there were four criteria included in four of the six bills that define whether an online platform is a “covered platform.” 

These criteria include it being owned or controlled by an entity with a market capitalization over $600 billion; a “critical partner” for a third party using its platform services; has more than 50 million US-based monthly active users or 100,000 US-based monthly business active users.

Rep. Zoe Lofgren, D-Calif., said that if the rest of the bills in the package get passed, particularly another one that passed by a 25-19 vote like the Augmenting Compatibility and Competition by Enabling Service Switching Act of 2021 or the ACCESS Act – that deals with the interoperability of the platforms. That is, how easy it is for users to switch from one to the other and how the platform technologies communicate with one another.

Lofgren added, the FTC currently only has a staff of 1131 – and of the 40 assigned to privacy and security issues, only five of them are technologists. In California alone, she noted, Amazon has more than 150,000 employees. This bill also estimates it would bring an additional $135 million in the first year, a 50% increase from what was collected in 2020.

“These bills are conservative,” Buck said, pointing out that “Big Government created Big Tech monopolists through antitrust amnesty, the conservative thing to do is hold Big Tech accountable. These bills do just that.” 

However, Buck’s party colleagues seemed to see it as a potential “blank check” to a government agency that could create a “big government” problem instead of keeping Big Tech in check, according to Rep. Dan Bishop, R-N.C.  

Echoing Bishop and Roy, Rep. Scott Fitzgerald, R-Wis., expressed worry about handing over this “blank check” to an FTC that has expressed it wants to do whatever is in its power to tackle systemic racism instead of solely antitrust enforcement when anti-competitive behavior is found, yet using “taxpayer dollars to enforce [its] agenda.”

Nevertheless, quite a few Republicans repeated how “hastily” the markups had been taken up a week after the package was introduced, and Rep. Massie charged that Microsoft had the bill before he even read it himself. Massie expressed disbelief that there were no hearings on this package before the markup for the various concerns could be hammered out. 

The Platform Competition and Opportunity Act of 2021 Act received one present vote and passed by 24-17, and the American Choice and Innovation Online Act squeezed by with a 24-20 vote.

The Ending Platform Monopolies Act, the final bill taken up that could break up Big Tech, was taken up yesterday morning, passing with 21-20 vote. The legislation will now move to the full House floor for a vote, but it is uncertain when it will be scheduled.