FTC Picks Pledge to Hold ‘Big Tech’ Accountable on Antitrust

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By Alexei Alexis

Four nominees for the Federal Trade Commission, including President Donald Trump’s pick for chairman, promised to hold big technology companies such as Facebook Inc. and Alphabet Inc.'s Google accountable if they engage in anticompetitive conduct.

Their comments reflect a growing concern among consumer advocates and some lawmakers that big tech companies such as Amazon.com Inc. are exercising too much power in the market. The nominees’ statements signal that the FTC may be more aggressive about policing those companies’ behavior in the future.

Trump’s FTC nominations are waiting for approval by the Senate Commerce Committee. Once the committee votes on them as a package, they will head to the Senate floor for a vote. The committee is waiting for a fifth FTC nominee to round out the commission, Chairman John Thune (R-S.D.) told reporters Feb. 14. As it stands now, the FTC would have a 3-1 Republican-Democrat ratio.

Thune wants the committee to vote on the four nominations as soon as its next meeting. But he said the fifth FTC nomination will probably get “bundled” with the others when it comes time to confirm them on the Senate floor.

If confirmed, chairman nominee Joseph Simons would be joined on the commission’s Republican side by Christine Wilson, a senior vice president for regulatory affairs at Delta Air Lines Inc., and Noah Phillips, an aide to Senate Majority Whip John Cornyn (R-Texas). Consumer advocate Rohit Chopra is the only Democratic nominee.

Waiting for the White House

Senate Democrats have been pushing Trump to round out his nominations with another Democrat. “I think there should be a fifth nominee, and I’m very hopeful about there being one,” Sen. Richard Blumenthal (D-Conn.), who is on the commerce panel, told Bloomberg Law.

The committee is waiting on Trump, Thune said. “That’s kind of up to the White House, I think,” he told reporters after an early exit from the hearing. “We’re hoping we’ll get it soon.

“These are impressive, highly qualified people, and I think they’ll be a very strong commission,” he added. “We need to get those positions filled.”

Big Tech

Thune asked the nominees at the hearing to weigh in on the growing debate over whether existing U.S. antitrust rules are sufficient for the digital age.

“Some argue that big tech should be subject to more antitrust scrutiny,” Thune said. He then asked the nominees to describe their views “regarding antitrust concerns with respect to large tech firms such as Facebook and Google.”

The nominees didn’t explicitly call for new rules targeting tech firms, but they said anticompetitive behavior of dominant firms should be stopped.

That “bigness” isn’t the overriding factor when it comes to antitrust enforcement, Simons said. “Sometimes big is good, sometimes big is bad, and sometimes it’s both at the same time,” he said.

If big companies offer goods or services at a low price, that’s good and regulators shouldn’t interfere, Simons said. But if a company uses anticompetitive methods to get or to stay big, “then we should be vigorously enforcing the laws and attacking that conduct,” he said.

Wilson said current laws are “broad and flexible” and capable of adapting to evolving technology. But she said it may make sense to take “another look” at the big tech companies that the agency has targeted in the past.

The FTC investigated Google in 2013 for abusing its dominance in the search engine market, but it closed the examination after the company promised to change its business practices. The commission also conducted lengthy investigations of Facebook’s privacy policies in conjunction with its acquisition of WhatsApp.

“My door is open,” Wilson said. “I am interested in hearing concerns or complaints that people may have about various companies.”

Chopra said “there’s a role to continue to look back at past actions to determine whether models and empirical analysis have been accurate, how they can be evolved.”

Phillips said he’s committed to enforcement where there are violations, “no matter who’s committing them.”

Whittled Down Law

Marshall Steinbaum, a fellow and research director at the Roosevelt Institute who is critical of the current U.S. antitrust approach, said he was glad the nominees seem willing to take a close look at concerns about tech companies.

“Wilson is correct that the antitrust statutes are broad and flexible, but they have been whittled down, in many cases to functional meaninglessness, by misguided judicial opinions and enforcement agency policies and actions,” he told Bloomberg Law. “Either the new FTC and the courts could revise those opinions and change their minds, or Congress should step in to correct them.”

The five-seat commission has three vacancies, and its two sitting members — acting Chair Maureen Ohlhausen and Democratic commissioner Terrell McSweeny — are expected to leave.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com

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