By Harry First & Eleanor M. Fox (New York University)
On March 4, 2020, we submitted a statement to the Antitrust Subcommittee of the House Judiciary Committee to assist it in its investigation of competition in digital markets. The version that we post here includes a “prescript” that highlights some of the important events relevant to our statement that have occurred in the five months since our statement was originally submitted.
Our statement reviews the problems that have been and are likely to be encountered in using current antitrust law to deal with the issues that the Big Tech platforms present. Based on our original statement, and subsequent events, we emphasize three points. First, we think it is time to bolster and reinforce the FTC’s powers. This is especially urgent given concerns about political interference with Justice Department investigations. One important way to bolster the FTC is to make clear that the Commission has the power to engage in antitrust rule-making, which we argue is the most likely vehicle for setting out clear rules to deal with the gate-keeping power of the Big Tech platforms. Second, we urge the United States to end its isolation from the international dialogue among competition authorities and join with other agencies in an effort to control these platforms. Third, we urge Congress to adopt a National Competition Policy that would provide a meta-policy statement for interpreting U.S. antitrust law and move antitrust law from a focus on a narrowly-defined consumer welfare standard to a broader conception.