President Joe Biden will nominate Jonathan Kanter to lead DOJ’s Antitrust Division, the White House announced Tuesday. Currently a partner at the Kanter Law Group, he previously served as an FTC Competition Bureau attorney.
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
FTC scrutiny for the tech industry’s smaller and serial acquisitions will increase if commissioners rescind a 1995 policy statement Wednesday, as expected, antitrust attorneys told us. The commission meets Wednesday for its second open meeting under Chair Lina Khan (see 2107120065). It will vote whether to rescind the policy statement on prior notice and prior approval remedies in transactions.
Amazon and Facebook are attempting to “bully” the FTC by seeking recusal of Chair Lina Khan (see 2107140036), Senate Democrats said in interviews. Republicans were more hesitant to dismiss the filings but credited Khan’s approach. A former FTC general counsel and a legal scholar told us it’s unlikely the companies will succeed.
The Commerce Department is prioritizing regulation that protects intellectual property, human rights and privacy without slowing innovation, Secretary Gina Raimondo said Tuesday. Various legislators and officials at a National Security Commission on Artificial Intelligence summit called for international cooperation, investment and for setting artificial intelligence standards.
The FTC and DOJ will work to update mergers and acquisitions guidelines and begin interagency collaboration directed in President Joe Biden’s executive order, FTC Chair Lina Khan and Attorney General Merrick Garland responded to the EO Friday. Democratic senators and consumer groups welcomed Biden’s call for more vigorous and modernized antitrust. Industry groups shot back. See a news bulletin here and 2107090063 for the EO's telecom provisions.
It will be a challenge for state attorneys general to prove Google has a monopoly over the Android app store market, former FTC and DOJ officials told us Thursday. Consumer groups welcomed Wednesday’s lawsuit from AGs in 36 states and Washington, D.C.
President Donald Trump’s lawsuits against Facebook, Google and Twitter (see 2107070065) raise “an interesting argument” about when a private entity becomes a state actor subject to First Amendment restraints, FCC Commissioner Brendan Carr said Thursday. Supreme Court precedent establishes that a private entity effectively becomes a state actor when “sufficiently coordinating with government actors,” Carr said during an FCBA event: “We’ll see how that case plays out.” And there are examples of affirmative, anti-discrimination obligations placed on private entities that involve public accommodation law, said Carr. He described a spectrum of speech obligations for cases involving data roaming and cable’s must-carry provisions. It can be argued that social media companies are in the realm of the cable must-carry cases, he said. It’s time for Congress to close the gap between tech platforms’ corporate power and the lack of accountability, he argued. “Reform” for Communications Decency Act Section 230 is one “important piece,” he said, but it’s not sufficient. Big Tech also needs to provide more transparency, he said, voicing support for the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act (see 2106100070). The bill “pretty much nails it,” Carr said. Congress should also consider methods for banning pretextual content moderation and imposing affirmative, anti-discrimination obligations, he said. Trump’s legal complaints aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument CDA Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.
Former President Donald Trump sued Facebook, Google, Twitter and their CEOs Wednesday, alleging illegal online censorship. Experts dismissed this as a baseless effort without First Amendment grounds.
The House Judiciary Committee missed an opportunity by marking up six antitrust bills without holding a post-introduction hearing (see 2106250062), an aide for the New Democrat Coalition told us Tuesday. House Antitrust Subcommittee Chairman David Cicilline, D-R.I., told reporters he and ranking member Ken Buck, R-Colo., will continue seeking support from Democratic and Republican members, including the New Democrats and the House Problem Solvers Caucus.
Broadcom monopolized “markets for semiconductor components” for television and broadband internet services “through exclusive dealing and related conduct,” the FTC said, filing charges Friday. The company said it hopes to reach a resolution with the agency that's “substantially similar” to a previous settlement with the European Commission involving the same products. The agency issued a proposed consent order, in which Broadcom would need to “stop requiring its customers to source components from Broadcom on an exclusive or near exclusive basis.” The commission voted 4-0-1 with Chair Lina Khan abstaining. The complaint “is a step toward addressing that problem by pushing back against strong-arm tactics by a monopolist in important markets for key broadband components,” said acting FTC Competition Bureau Director Holly Vedova. Broadcom is a “monopolist in the sale of three types of semiconductor components,” the FTC said, citing chips that are the “core circuitry that run traditional television broadcast set top boxes, as well as DSL and fiber broadband devices.” The company “illegally maintained its power in the three monopolized markets by entering long-term agreements with both OEMs and service providers that prevented these customers from purchasing chips from Broadcom’s competitors,” the FTC alleged. Broadcom disagrees its actions “violated the law and [we] disagree with the FTC’s characterizations of our business, [but] we look forward to putting this matter behind us and continuing to focus on supporting our customers through an environment of accelerated digital transformation,” a company spokesperson said. “We are equally pleased that the FTC investigation into our other businesses has been closed without action.”