United States

By Ian Brown. Last updated 12 October 2023

The Biden administration, and Congressional representatives from both parties, have promised significant competition reforms relating to digital markets. Biden appointed reformers to key posts in the Federal Trade Commission and Department of Justice, and in July 2021 issued an executive order entitled Promoting Competition in the American Economy. This included 72 initiatives across the federal government, including vigorous antitrust enforcement focused on labour, agricultural, healthcare and technology markets. 

The order announced a policy of “greater scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by ‘free’ products, and the effect on user privacy.” The US administration also plans closer regulatory cooperation with the EU via their joint Trade and Technology Council, which first met in Pittsburgh on 29 September 2021.

Following a 16-month investigation, the US House of Representatives antitrust subcommittee introduced five bipartisan antitrust bills in June 2021 targeting the largest “critical trading partner” search, marketplace and user-generated content platforms (with at least 50m monthly active US users/100,000 business MAUs and market capitalisation > $600bn), alongside an additional bill on states’ rights to bring cases. Senators Klobuchar, Blumenthal and Lee also presented antitrust bills. The Biden administration wrote to members of Congress supporting the American Online Innovation and Choice Act (AOICA), and proposed a budget increase of $227m for antitrust enforcement by the Department of Justice and Federal Trade Commission.

While the Senate agreed a merger assessment fee increase of roughly $350m a year in the final days before the Republicans took over the House in 2023, and restricted the transfer of cases brought by state attorneys-general to other districts, the Majority Leader Chuck Schumer would not allow a vote on the popular AOICA or Open App Markets Act. The other acts have made no further progress.

American Innovation and Choice Online Act H.R.3816 (Rep. Cicilline); S.2992 (Sen. Klobuchar)Bans discriminatory conduct by covered platforms, including self-preferencing and using their ability to “pick winners and losers” anticompetitively(House) Ordered to be reported 24/6/21; Placed on Senate Legislative Calendar under General Orders 2/3/22
Platform Competition and Opportunity Act H.R.3826 (Rep. Jeffries)Bans acquisitions of “competitive threats” or firms expanding/entrenching market power by covered platformsOrdered to be reported 24/6/21
Ending Platform Monopolies Act HR3825 (Rep. Jayapal)Gives the antitrust enforcement agencies a new tool to sue to break up a line of business from a covered platformOrdered to be reported 24/6/21
Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act H.R.3849 (Rep. Scanlon)Mandates data portability and interoperability via open APIs for covered platforms Ordered to be reported 24/6/21
Merger Filing Fee Modernization Act H.R.3843 (Rep. Neguse, also S.228)Increases Department of Justice (DoJ)/Federal Trade Commission (FTC) income from merger fees for antitrust enforcementMeasures included in Consolidated Appropriations Act, 2023
State Antitrust Enforcement Venue Act H.R.3460 (Rep. Buck)Prevents state antitrust actions being transferred to federal courtsMeasures included in Consolidated Appropriations Act, 2023
Competition and Antitrust Law Enforcement Reform Act S.225 (Sen. Klobuchar)Require parties to mergers significantly increasing concentration, or extremely large, to bear burden of showing not anti-competitive; prohibit certain exclusionary conduct; enabled DoJ/FTC to seek civil monetary penalties for Sherman Act violationsReferred to Senate Judiciary Committee 2/4/21
Tougher Enforcement Against Monopolists Act S.2039 (Sen. Lee)Consolidating antitrust enforcement in DoJ; new merger presumptions; safe harbour for data portability and interoperability effortsReferred to Senate Judiciary Committee 14/6/21
Open App Markets Act S.2710 (Sen. Blumenthal, also H.R.5017)Limits company controlling app stores with 50m+ users from requiring use of its own payment system, requiring most favoured terms, interfering with legitimate business communications with customers, using non-public information to compete, blocking alternative app stores, self-preferencing in search, and closing API accessPlaced on Senate Legislative Calendar under General Orders 17/2/22
Current US Congress antitrust bills

The House antitrust subcommittee bills faced opposition from technology-firm supported trade groups and Californian Democrat representatives. While they received some Republican support, the New York Times also reported the House Speaker was under pressure to slow consideration of the bills.

The chair and ranking member of the House antitrust subcommittee wrote in October 2021: “Congress has a choice. We can either enact these meaningful reforms—along with others that will protect users’ privacy and safety online—or we can continue to hold hearings and debate the problem as nothing changes.”

Civil society advocacy

As well as legislative reform, civil society groups such as the Open Markets Institute, Public Knowledge, Public Citizen, the American Economic Liberties Project, and the Electronic Frontier Foundation have pushed for stronger enforcement action (welcoming the appointment of antitrust reform expert Lina Khan as FTC chair and the nomination of Alvaro Bedoya, advocating against mergers, and supporting federal and state lawsuits) and called for Big Tech companies to be broken up and regulated. EFF has worked both in the US, and closely with EU groups, on interoperability mandates for the largest platforms.

Groups including Public Knowledge and Open Markets strongly advocated for the successful US Senate confirmation of Department of Justice Assistant Attorney-General for Antitrust Jonathan Kanter (also welcomed by Economic Liberties), as well as Federal Communications Commission (FCC) chair Jessica Rosenworcel, and in favour of the nominations to the Federal Trade Commission (FTC) of Alvaro Bedoya (which was finally approved in May 2022) and FCC of Gigi Sohn (who ultimately withdrew).

Ongoing enforcement actions

The Department of Justice and 11 states sued in Oct. 2020 “to restrain Google…from unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices, and to remedy the effects of this conduct.” The trial is in progress in late 2023, alongside a consolidated suit from 38 states led by Colorado and Nebraska making similar claims.

The Department of Justice and 18 states have also filed a separate claim against Google in 2023 alleging monopolisation of the adtech market, while 36 states led by Utah sued in 2021 alleging Google has monopolised the smartphone application market.

16 states and Puerto Rico have separately sued “to remove the veil of Google’s secret practices and put an end to Google’s anticompetitive abuses of its monopoly power in online advertising markets. Plaintiff States seek to restore free and fair competition to these markets and to secure structural, behavioral, and monetary relief to prevent Google from ever again engaging in deceptive trade practices and abusing its monopoly power to foreclose competition and harm consumers.” Various lawsuits have been consolidated into this case, but Texas and nine other states are attempting to re-separate their claim Google illegally worked with Facebook, using federal legislation enacted in Dec. 2022.

The Federal Trade Commission (FTC) and 17 states sued Amazon on 26 Sept. 2023, claiming the company “uses its vast power, size, and control over multiple business units to implement an interrelated and exclusionary course of conduct. Each element of this overarching strategy aims at the same goal: to keep rivals from gaining the scale needed to compete effectively against Amazon. And each element amplifies the force of the rest, in a self-reinforcing cycle of dominance and harm.” California filed a suit against Amazon containing some of these elements in Sept. 2022.

The FTC has also sued Meta for allegedly monopolising the personal social networking market, asking the court to order the sale of Instagram and WhatsApp. The current expert discovery phase is due to end on 5 Jan. 2024.

Acknowledgment: this update was commissioned by Open Society Foundations.