The leading developer advocate has commented on all five bills, raising concerns over individual and small business impact, as well as the potential loss to innovation.
Washington D.C., June 16th, 2021 – The Developers Alliance, a global industry association that supports software developers as entrepreneurs, innovators, and creators, have issued their reaction to a series of proposed bills in the House of Representatives. The bills were released with the collective aim of restructuring how technology markets operate and how tech companies compete.
Companion bills are now being contemplated in the Senate, and competing bills are in the works. The bills rely in large measure on previous findings by Congress on the state of competition in the technology sector. The Developers Alliance commented on the original report’s findings at the time.
While we’re encouraged to see Congress taking an active role in the global debate over the future of the technology sector, we’re alarmed by how much the package borrows from misguided and overreaching regulation emerging from the EU and elsewhere. Taken collectively, the bills pose a significant threat to millions of U.S. software developers, both in their direct application and in the predictable harm they will cause to the dynamic marketplace that has made U.S. software and services the driving force in the global digital economy.
The American Choice and Innovation Online Act (H.R. 3816) proposes to dismantle the ecosystem that over 2 million software developers have built their business success on – without establishing or even contemplating a viable alternative. At a stroke, it will set the U.S. tech industry back 10 years by replicating flawed EU regulatory proposals and effectively cementing in place dominant firms to the exclusion of startups and new entrants.
The ACCESS Act of 2021 (H.R. 3849), which champions data portability, should be part of a comprehensive privacy bill. Tasking the FTC to set “privacy and security standards” for shared user data privacy and security in a sidebar to the regulation of competitive data markets threatens to wade into a quagmire. Given that state and foreign privacy rights are set to different — and often competing — standards, it is impossible to determine what is reasonable for any particular data set from any particular customer or service, let alone establishing uniform rules for all.
With regards to the Platform Competition and Opportunity Act of 2021 (H.R. 3826), which seeks to regulate Big Tech M&A, we strongly object to the bill’s blanket prohibition and burden shift over tech acquisitions without placing a balancing burden on the FTC. The Act should require the FTC to also demonstrate that the target of acquisition has the resources and competitive position necessary to ensure a substantial likelihood of commercial success without the benefits of the acquisition. Any change in the law that is meant to safeguard startups and emerging companies must protect the interests of the smaller competitor as its highest priority.
On the Ending Platform Monopolies Act (H.R. 3825), which targets platforms with multiple lines of business, we would observe that the prohibited behavior is common in physical markets, and completely appropriate absent some evidence of positive acts that go beyond “incentive and ability.” We have seen no convincing evidence that either the FTC or the DoJ are unable to adequately investigate and ascertain whether specific platform behavior is illegal under existing law.
On the Merger Filing Fee Modernization Act of 2021 (H.R. 3843), we note that the burden of these fees increases the costs of acquisitions, but recognize the taxpayer benefit of assessing fees against those entities that drive government costs for discretionary services.
“The Congressional obsession with Big Tech has blinded them to the fate of the millions that make their living inside the digital economy,” said Bruce Gustafson, CEO of the Developer Alliance. “Competition law should make the world better for the little guy, not worse. Whatever else you think of them, Big Tech has built an ecosystem that has enabled a decade of prosperity for small developers. We believe there is a path for incremental improvements in how our industry operates if only Congress would take advice from the millions of software developers who know Big Tech the best.”
