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House antitrust subcommittee unveils five big tech antitrust bills

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The U.S. Capitol building is seen behind security fencing that has been up around the building since shortly after the January 6, 2021 siege on Capitol Hill in Washington, May 28, 2021. REUTERS/Evelyn Hockstein

14-Jun-2021 - The House of Representatives Antitrust Subcommittee introduced five bills aimed at regulating monopolies in the technology industry. The bills include the American Innovation and Choice Online Act, the Platform Competition and Opportunity Act, the Ending Platform Monopolies Act, the Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, and the Merger Filing Fee Modernization Act.

On June 11, 2021, the House of Representatives Antitrust Subcommittee introduced five bills aimed at regulating monopolies in the technology industry. The bipartisan bills are part of the legislative agenda "A Stronger Online Economy: Opportunity, Innovation, Choice," created after the committee's 16-month investigation into Amazon, Apple, Facebook, and Google.

For all bills other than the Merger Filing Fee Modernization Act, "covered platforms" are those with both:

At least 50,000,000 US-based monthly active users or 100,000 US-based monthly active business users.

A market capitalization of over $600 billion.

The American Innovation and Choice Online Actprohibits covered platforms from, among other things:

Promoting their own products or services over another business user's products or services.

Excluding or disadvantaging another business user's products or services related to the covered platform's products or services.

Discriminating against similarly situation business users, including:

restricting, capping, or conditioning a business user's access to the platform;

using non-public data generated by another business user to benefit the covered platform's own products or services;

interfering with another business user's pricing; and

retaliating against any business user that raises concerns about the covered platform's activities with law enforcement.

Violating the American Innovation and Choice Online Act would result in, in addition to restitution and disgorgement, a fine of either:

Up to 15% of the platform's US revenue for the previous calendar year.

30% of the platform's US revenue for any line of business affected by the unlawful conduct.

The Platform Competition and Opportunity Act prohibits acquisitions by dominant online platforms unless the acquisition does not:

Include assets that compete with the covered platform in the sale of any product or service.

Involve a nascent or potential competitor to the covered platform, including competition for a user's attention.

Enhance or increase the covered platform's market position for any product or service offered on or directly related to the covered platform.

The Ending Platform Monopolies Act prohibits covered platforms from owning, controlling, or having a beneficial interest in a business that:

Uses the covered platform to sell products or services.

Offers products or services that the covered platforms require business users to purchase as a condition for access to, or preferred placement on, the covered platform.

Creates a conflict of interest, including when a covered platform owns a different line of business that creates an incentive and ability of the covered platform to advantage its own products or services over those of a competing business.

The Ending Platform Monopolies Act also contains a prohibition on interlocking directorates and other service prohibitions.

A violation of the Ending Platform Monopolies Act would result in, in addition to restitution and disgorgement, a fine of either:

Up to 15% of the platform's US revenue for the previous calendar year.

30% of the platform's US revenue for any line of business affected by the unlawful conduct.

The Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act is intended to lower barriers to entry and switching costs. The ACCESS Act requires covered platforms to maintain third-party accessible interfaces to allow for:

The secure transfer of data to users and business users (at the direction of a user).

Interoperability with competing or potentially competing businesses.

The ACCESS Act also prohibits:

Covered platforms from collecting user data obtained from a business user through the interoperability interface, unless it is for the purpose of safeguarding the information's privacy and security.

Business users from collecting, using, or sharing a covered platform's user data, unless it is for the purpose of safeguarding the information's privacy and security.

The Merger Filing Fee Modernization Act updates, among other things, the HSR filing fees from:

$45,000 to $30,000, where the size-of-transaction is more than $92 million but less than $184 million.

$125,000 to $100,000, where the size-of-transaction is $184 million or more but less than $919.9 million.

$280,000 to $250,000, where the size-of-transaction is $919.9 million or more.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Practical Law is owned by Thomson Reuters and operates independently of Reuters News.

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