The June 2021 Developers Alliance US Policy Update.
So Many Competition Bills
The House of Representatives has introduced a series of six tech-focused bills that, following a marathon markup, passed the Judiciary Committee. While the bills are largely seen as bipartisan, members on both sides of the aisle, as well as many in the private tech sector, have taken issue with some of their components. This includes many from the California delegation who are concerned about the impact on tech industry employees — and specifically the impacts on smaller developer-led corporations. Some Republicans are considering releasing their own proposals for tech reform as they do not believe the current slate of bills best reforms the existing issues within the industry. While most of the bills do not have Senate counterparts yet, a handful of Senators have expressed interest in bringing companion legislation to the floor in the coming days.
Developers Alliance released a statement on the series of bills here and has joined our peers in a letter to Congress advocating for developer interests with regards to these bills. In short, the bills do the following:
The Ending Platform Monopolies Act seeks to break up tech companies by “making it unlawful for a dominant online platform — such as Google, Apple, Amazon, and Facebook — to simultaneously own another line of business when that dual ownership creates a conflict of interest. Companies in violation could have to divest lines of business where their gatekeeper power allows them to favor their services or disadvantage rivals.” This bill was specifically cited as written for “blow(ing) up the tech economy.”
The Platform Competition and Opportunity Act of 2021 will establish that “certain acquisitions by dominant online platforms are unlawful,” therefore prohibiting many developer-led companies from selling their companies.
The American Choice and Innovation Online Act seeks to interfere in the digital marketplace by setting rules for platforms regarding what products and services they offer. The Developers Alliance has joined an industry letter specifically expressing our disapproval of the bill.
The ACCESS Act of 2021 makes it easier for data to be transferred from one digital platform to the next, and seeks to “promote competition, lower entry barriers, and reduce switching costs for consumers and businesses online.” While we believe this legislation has merit, it should not be moved forward as a standalone bill but rather as part of a broader, more comprehensive data privacy bill.
The Merger Filing Fee Modernization Act of 2021 strengthens “antitrust enforcement and protect(s) competition through adjusting premerger filing fees, and increasing antitrust enforcement resources.” While the bill would increase the burden for large companies seeking mergers, we believe it would benefit small developer-led companies seeking to be acquired while continuing to provide the government with the necessary resources for proper antitrust enforcement. A version of this bill has already passed the Senate as part of the U.S. Innovation and Competition Act, thus it is likely to become law.
The State Antitrust Enforcement Venue Act of 2021 gives more power to states to enforce antitrust laws on the books and prevents defendants from moving cases to venues most convenient for them.
A federal judge has thrown out a major FTC antitrust case against Facebook citing that the government had failed to provide enough facts to back up its claims against the tech company holding market dominance. The FTC has until the end of July to amend its case however the agency seems to have a tough battle ahead according to the court documents. The White House is in the process of drafting an executive order regarding competition within the US economy. While the order will seek broad competition policy reform, the tech sector is expected to be a major target. While the details have not been released the order is expected to be aimed at both increasing competition and lessening the impacts of dominant players across certain sectors.
New York State is in the process of passing the Twenty-First Century Anti-Trust Act, a sweeping competition bill seeking to expand the state’s antitrust enforcement mechanism. Among other provisions, the legislation would allow for companies to be sued for “abuse of dominance” — even if they did not qualify as a monopoly. This legislation would be a first in the United States, reaching past the existing Sherman Act and seeking to mimic existing antitrust legislation in the European Union.
The OECD has finally come to an agreement on the ongoing global tech tax rate, agreeing upon a global minimum of 15 percent, charged to companies in the jurisdiction in which they make the profit. The agreement is expected to be approved on July 9th.
Colorado joins the list of states in the nation that have rolled out a comprehensive privacy bill. This month the state passed the Colorado Privacy Act, which becomes effective July 2023. The new law “applies to businesses that collect and store data on more than 100,000 individuals or those earning revenue from the data of more than 25,000 consumers. It also includes various data subject rights, a broad opt-out consent model with a universal opt-out mechanism, a right to cure, and attorney general rulemaking and enforcement.” States are continuing to establish their own data privacy laws with various and often differing provisions. We at the Developers Alliance believe it is necessary for the federal government to set a national standard on data privacy.
The Senate continues to debate the long awaited infrastructure bill that includes funding for broadband. Expect to see more on this before congress goes on their August recess. For more of our take on the matter, see here.
The House Science, Space and Technology Committee held a hearing on Building Regional Innovation Economies in June as well. The hearing explored ways to successfully invest in technology outside of major urban areas, specifically with regards to infrastructure and bringing tech focused jobs to Americans who live in rural parts of the country. We look forward to following the work of this committee on these issues. We see expanded broadband access and availability of tech jobs as paramount to the securing and strengthening of the developer workforce for the future.
Vocal tech critic Lina Khan was officially confirmed as FTC commissioner and has begun to staff the agency. Stay tuned for more updates from this office as the new team gets settled in.