FTC prioritizes guidance on application of antitrust laws to Big Tech

The effort will help clarify “whether there are limitations in antitrust law that prevent” government agencies “from prohibiting or successfully remedying anticompetitive or unfair conduct,” noted Sayyed, who is the director of the FTC’s Office of Policy Planning.

The new guidance will be modeled after the antitrust guidelines for collaborations among competitors jointly issued by the FTC and the U.S. Department of Justice back in 2000, Sayyed said. Ultimately, the guidance will help both Congress and the executive branch determine whether new laws or regulations will be necessary.

Sayyed expounded on the importance of tackling enforcement beyond evaluation, noting the importance of focusing on the “impacts” of companies’ conduct, rather than the labels applied to the behavior.

While characterizing tech platforms as essential facilities or labeling their conduct as being simply product design decisions or exclusive deals can help distinguish relevant caselaw, “such labeling should not distract from the focus of the Commission’s inquiry, which should be on whether and how the conduct affects competition—including competition for inputs—and consumers,” Sayyed said.

Sayyed sees the “articulation and publication of a clear analytical framework” for the evaluation of Big Tech conduct as the next necessary step.

From there, it will be key to develop frameworks for the assessment of vertical integration via merger or acquisition as well as for certain horizontal mergers, Sayyed said.

Also on the FTC’s plate: developing frameworks to evaluate whether common ownership “has been shown to have anticompetitive effects”; assessing limits on the FTC’s authority to address anticompetitive behavior within the broadband industry; and examining the consumer welfare standard and alternatives to it “as an organizing principle of antitrust analysis,” Sayyed said.

Room for improvement?

In reviewing a 50-year history of the FTC’s efforts to restructure the U.S. economy and aid consumers, Sayyed acknowledged assessments of the FTC’s effectiveness over the years by various stakeholders indicate “near unanimous agreement that the agency embarked upon its efforts to reshape whole industries without a clear framework of what it was looking for and how it would analyze what it found.”

The times are changing. Proceeding without a clear theory or without any clear articulation of a theory today is “inconsistent with stewardship of the Commission’s resources, and the public good,” maintained Sayyed.

Some companies are already getting that message. On Friday, the House Judiciary Committee, which announced a bipartisan investigation into competition in digital markets earlier this year, sent document requests to Amazon, Apple, Facebook, and Google. The Committee is seeking information about the companies’ individual market share and their primary competitors.

The purpose of the investigation is to examine competition problems in digital markets, consider whether dominant firms are engaging in anticompetitive conduct online, and address the sufficiency of existing antitrust laws, competition policies, and enforcement levels, the Committee explained in its letters.

The companies have until Oct. 14 to provide the requested materials.

Lori Tripoli is a writer based in the greater New York City area who focuses on legal and regulatory issues.