Cicilline, Buck, Klobuchar, Grassley Announce Department of Justice Support for Bipartisan Legislation to Restore Online Competition

Justice Department: “The Department is strongly supportive of these objectives and encourages both the Committee and Congress to work to finalize this legislation and pass it into law”

This builds on growing momentum for the legislation after it was the first tech competition policy bill to pass out of the Judiciary Committee since the dawn of the internet

WASHINGTON – Representatives David Cicilline (D-RI) and Ken Buck (R-CO), Chair and Ranking Member of the House Subcommittee on Antitrust, Commercial, and Administrative Law, and U.S. Senator Amy Klobuchar (D-MN), Chairwoman of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights; and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, today announced that the Department of Justice voiced strong support for their legislation to restore competition online.

In the letter of support, Acting Assistant Attorney General Peter Hyun wrote: “The Department views the rise of dominant platforms as presenting a threat to open markets and competition, with risks for consumers, businesses, innovation, resiliency, global competitiveness, and our democracy…By confirming the illegality of behaviors that reduce incentives for smaller or newer firms to innovate and compete, the legislation would supplement the existing antitrust laws in preventing the largest digital companies from abusing and exploiting their dominant positions to the detriment of competition and the competitive process. The Department is strongly supportive of these objectives and encourages both the Committee and Congress to work to finalize this legislation and pass it into law.”

“We believe that this legislation has the potential to have a positive effect on dynamism in digital markets going forward. Our future global competitiveness depends on innovators and entrepreneurs having the ability to access markets free from dominant incumbents that impede innovation, competition, resiliency, and widespread prosperity,” the letter continued. “Even more importantly, the legislation may support the growth of new tech businesses adjacent to the platforms, which may ultimately pose a critically needed competitive check to the covered platforms themselves…For these reasons, the Department strongly supports the principles and goals animating the legislation and looks forward to working with Congress to ensure that the final legislation enacted meets these goals.”

“I am proud to see the Justice Department recognize that the American Innovation and Choice Online Act will help secure America’s global competitiveness, create economic prosperity, and unlock innovation and entrepreneurship,” said Cicilline. “As the Department notes, this bipartisan legislation will provide much-needed clarity to the law while enhancing the ability of enforcers to efficiently and effectively promote competition online. I look forward to working with my colleagues to get this bill to the President’s desk. The American people are demanding action, and we’re going to deliver.”

“The Department of Justice’s letter of support is a huge step forward for this legislation, and represents the pieces falling into place for wide-ranging reforms to America’s competition landscape to pass into law.  Now it’s time for the full House to act on this bill to protect small business and ensure that the free market is working for everyone, not just Big Tech monopolies,” said Buck.

“As dominant digital platforms – some of the biggest companies our world has ever seen – increasingly give preference to their own products and services, we must put policies in place to ensure small businesses and entrepreneurs still have the opportunity to compete,” said Klobuchar. “I’m glad that the Justice Department recognizes the urgent need to restore competition online to prevent tech conglomerates from abusing their market power, and to ensure that consumers can benefit from greater choice. I’ll keep working with my colleagues on both sides of the aisle to pass this much-needed legislation and get it signed into law.” 

“Vigorous competition in America’s market economy has produced some of the world’s greatest innovations and businesses. Our legislation bolsters that free, open and competitive market, ensuring that American entrepreneurs and businesses can continue building and innovating. Our pro-competition bill brings significant benefits and those most knowledgeable about enforcement believe it will positively affect our economy,” said Grassley.

Congressmen Cicilline, Buck, and Lance Gooden (R-TX) introduced the American Innovation and Choice Online Act in the House on June 11, 2021. The legislation passed the House Judiciary Committee by a bipartisan vote of 24-20 on June 24, 2021. The bill has 32 cosponsors.

In October, Klobuchar and Grassley introduced the American Innovation and Choice Online Act to set commonsense rules of the road for major digital platforms to ensure they cannot unfairly preference their own products and services. In February, the legislation passed the Senate Judiciary Committee by a bipartisan vote of 16-6, making it the first major bill on technology competition to advance to the Senate floor since the dawn of the Internet.

The Senate legislation is cosponsored by Senators Dick Durbin (D-IL), Lindsey Graham (R-SC), Richard Blumenthal (D-CT), John Kennedy (R-LA), Cory Booker (D-NJ), Cynthia Lummis (R-WY), Mazie Hirono (D-HI), Mark Warner (D-VA), Josh Hawley (R-MO), Steve Daines (R-MT), and Sheldon Whitehouse (D-RI), and endorsed by companies including Roku, DuckDuckGo, Yelp, Spotify, and Match Group.  Over 35 small and medium-sized tech companies signed a letter supporting this legislation and urging Congress to take action to advance it.

The full text of the Department of Justice’s letter is available HERE and below:

Dear Chairman Nadler, Chairman Cicilline, Representative Jordan, and Representative Buck:

The Department of Justice (Department) appreciates the considerable attention and resources devoted by the House and Senate Committees on the Judiciary over the past several years to ensuring the competitiveness of our digital economy, and writes today to express support for the American Innovation and Choice Online Act, Senate bill S. 2992, and the American Innovation and Choice Online Act, House bill H.R. 3816, which contain similar prohibitions on discriminatory conduct by dominant platforms (the “bills”).

The Department views the rise of dominant platforms as presenting a threat to open markets and competition, with risks for consumers, businesses, innovation, resiliency, global competitiveness, and our democracy. By controlling key arteries of the nation’s commerce and communications, such platforms can exercise outsized market power in our modern economy. Vesting the power to pick winners and losers across markets in a small number of corporations contravenes the foundations of our capitalist system, and given the increasing importance of these markets, the power of such platforms is likely to continue to grow unless checked. This puts at risk the nation’s economic progress and prosperity, ultimately threatening the economic liberty that undergirds our democracy.

The legislation, if enacted, would emphasize causes of action prohibiting the largest digital platforms from discriminating in favor of their own products or services, or among third-parties. In so doing, it would provide important clarification from Congress on types of discriminatory conduct that can materially harm competition. This would improve upon the system of ex ante enforcement through which the United States maintains competitive markets with legal prohibitions on harmful corporate conduct. By confirming the illegality of behaviors that reduce incentives for smaller or newer firms to innovate and compete, the legislation would supplement the existing antitrust laws in preventing the largest digital companies from abusing and exploiting their dominant positions to the detriment of competition and the competitive process. The Department is strongly supportive of these objectives and encourages both the Committee and Congress to work to finalize this legislation and pass it into law.

The Department views the legislation’s new prohibitions on discrimination as a helpful complement to, and clarification of, existing antitrust authority. In our view, the most significant benefits would arise where the legislation elucidates Congress’ views of anticompetitive conduct—particularly with respect to harmful types of discrimination and self-preferencing by dominant platforms. Enumerating discriminatory and self-preferencing conduct that Congress views as anticompetitive and therefore illegal would clarify the antitrust laws and supplement the available causes of action and legal frameworks to pursue that conduct. Doing so would enhance the ability of the DOJ and FTC to challenge that conduct efficiently and effectively and better enable them to promote competition in digital markets. The legislation also has the potential to effectively harmonize broad prohibitions with the particularized needs and business practices of individual platforms over time.

If enacted, we believe that this legislation has the potential to have a positive effect on dynamism in digital markets going forward. Our future global competitiveness depends on innovators and entrepreneurs having the ability to access markets free from dominant incumbents that impede innovation, competition, resiliency, and widespread prosperity. Discriminatory conduct by dominant platforms can sap the rewards from other innovators and entrepreneurs, reducing the incentives for entrepreneurship and innovation. Even more importantly, the legislation may support the growth of new tech businesses adjacent to the platforms, which may ultimately pose a critically needed competitive check to the covered platforms themselves. We view these benefits as significant. For these reasons, the Department strongly supports the principles and goals animating the legislation and looks forward to working with Congress to ensure that the final legislation enacted meets these goals.

Thank you for the opportunity to present our views. We hope this information is helpful. Please do not hesitate to contact this office if we may be of additional assistance to you.