Sen. Klobuchar Hopes DOJ Is Serious About Big Tech Probe, Files Antitrust Bill
Sen. Amy Klobuchar, D-Minn., told reporters Thursday she hopes DOJ's serious about its broad review of the tech industry. Antitrust enforcers, however, shouldn’t break up big tech platforms unless investigations support it, she said. The ranking member of the Senate Antitrust Subcommittee and its Chairman Mike Lee, R-Utah, were recently briefed by DOJ Antitrust Division Chief Makan Delrahim (see 1907250049), the same day DOJ announced its industry review.
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“My hope is [DOJ is] very serious about this investigation,” said Klobuchar. Breaking up companies shouldn’t be the default in this new “Gilded Age,” she said, urging enforcers to “harness the power of investigations.” Antitrust laws do, however, need to be changed, she said.
Lee confirmed his briefing with Delrahim: “I talk to Makan all the time,” Lee told us, noting he often offers thoughts about antitrust enforcement. Lee railed about reports DOJ and the FTC are running overlapping investigations, saying that will lead to redundancy and conflicting conclusions.
Klobuchar introduced legislation on July 23 that would allow DOJ and the FTC to seek civil penalties for monopolization offenses under antitrust laws. Co-sponsored by Sens. Richard Blumenthal, D-Conn.; Dianne Feinstein, D-Calif.; and Ed Markey, D-Mass., the Monopolization Deterrence Act, (S-2237) would allow enforcers to target violators who promote their own services over competitors', for instance. Klobuchar’s still seeking Republican co-sponsors.
Violators would face “penalties of up to 15 percent of the violator’s total U.S. revenues or 30 percent of the violator’s U.S. revenues in the affected markets.” Consumer Reports, the American Antitrust Institute and Public Knowledge endorsed the legislation.
The bill also targets “anticompetitive refusals to deal fairly with competitors or potential competitors” and “anticompetitive tying or bundling,” noted PK Competition Policy Counsel Charlotte Slaiman. Section 2 of the Sherman Act allows enforcers only to prevent future anticompetitive behavior, she said: Adding monetary penalties “could help deter anticompetitive conduct and give the antitrust enforcement agencies more leverage to promote competition.”
For privacy enforcement, FTC Chairman Joe Simons has repeatedly urged Congress to grant the agency civil penalty authority, targeted rulemaking authority and jurisdiction over common carriers and nonprofits. Feinstein introduced a bill (S-2349) last week to amend the FTC Act to eliminate the common carrier exemption for telcos, with Klobuchar and Blumenthal co-sponsoring.
Sens. Josh Hawley, R-Mo., and Thom Tillis, R-N.C., discussed FTC authority in general during interviews last week. Tillis worries about transferring too much authority to the administration, when Congress should be held accountable: “Quite honestly, I think we’ve granted too many agencies with too much authority. I prefer congressional accountability.” He would reverse about 75 years of precedent and claw back a lot of authority, he said: “It should be on us.”
Hawley is having a “crisis of confidence” in the FTC, he told us, citing the recent Equifax and Facebook data breach settlements. “I know they want more authority, more staff, and they want more money,” he said, but the FTC’s record doesn’t suggest it would help. Congress should ask whether enforcement responsibilities should be reassigned and confirm the FTC is the proper agency before granting more tools, he said.