Federal Trade Commission and Department of Justice
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) are the two US regulatory bodies tasked with enforcing antitrust laws. They’ve agreed to split the investigations into Big Tech with each focusing on two of the major players. For 2020, the FTC has vowed to “monitor, study, and maintain competition” of technology, while also taking a closer look at consumer protection in the 21st century based on hearings it held in 2019. Enforcement in the healthcare industry is also a priority.
DOJ Chief Makan Delrahim said during a speech at Harvard Law School that the agency is specifically looking at the collection of data and the impediment of competitor access to data. Regulators are increasingly concerned about the impact of vertical integration in industries such as media and telecom, as large companies see the need to consolidate to remain competitive. As PwC noted, hostile antitrust reaction has had a measurable impact on media deals, with companies waiting on the results of pending litigation before entering into agreements.
State Attorneys General
US state Attorneys General (AGs) from across the country are pursuing investigations, united in concern about control of personal data by large tech companies, anticompetitive practices that have led to these companies’ dominance and breaches of privacy. States can flex their own muscle to tackle specific issues in the face of slow federal action. Consider how California is seeking its own tough state-level net neutrality law. Or how New York recently passed the SHIELD ACT that increases the AG’s enforcement authority to prosecute data protection violations on behalf of New Yorkers.
States are also influencing the tenor of the investigations by urging the FTC to look beyond price to assess whether consumers are harmed, also pushing for focus on quality, privacy and innovation.
Antitrust has become a major election issue for the first time in decades, with many high-profile Democrats voicing concern about the market dominance of several large technology companies. Senator Elizabeth Warren (D-MA) has pushed for break up of Big Tech companies, while enforcement and penalties related to antitrust in general are increasing.
Senator Amy Klobuchar (D-MN) has introduced legislation that would give the FTC and DOJ the power to enact civil penalties for monopolistic practices—up to 15% of domestic revenues for the prior year or 30% of US revenues in affected markets during the period in which antitrust laws were violated—making the stakes for compliance much higher.
Already known as a strong enforcer of anticompetitive behavior and tax avoidance during her previous term as European Commissioner for Competition, Vestager’s reappointment for another five years likely means stepped up efforts to make Europe fit for the digital age. As Europe’s antitrust chief, she is focusing on enforcing competition rules—particularly around digital platforms. During an antitrust investigation in October 2019, Vestager ordered one company to halt certain business practices mid-investigation—a new move in antitrust enforcement.