Il report finale per il Congresso USA sulla concorrenza nei mercati ditigali

La House of Representatives del Congresso USA , SUBCOMMITTEE ON ANTITRUST, COMMERCIAL AND ADMINISTRATIVE LAW, ha ricevuto la relazione finale su <<Investigation of competition in digital markets – Majority staff report and recommentations>>.

Vediamo in sintesi le ficcanti e decise   “Recommendations” (sub V, p. 378 ss), evidente frutto di accurato lavoro teorico sottostante (soprattutto di Lina Khan, pare, come osserva Shaul Sussman nel post 8 ottobre 2020 The Roots of Congress’ Pathbreaking Report on Big Tech, in; Khan è Counsel della Subcommittee), divise in tre macrogruppi A-B-C:

A: <Restoring Competition in the Digital Economy>

e qui in particolare:

1-Reduce Conflicts of Interest Thorough Structural Separations and Line of Business Restrictions;

2-Implement Rules to Prevent Discrimination, Favoritism, and Self-Preferencing;

3-Promote Innovation Through Interoperability and Open Access (dato che “digital markets have certain characteristics—such as network effects, switching costs, and other entry barriers—that make them prone to tipping in favor of a single dominant firm. As a result, these markets are no longer contestable by new entrants, and the competitive process shifts from “competition in the market to competition for the market.” This dynamic is particularly evident in the social networking market. As discussed earlier in the Report, Facebook’s internal documents and communications indicate that due to strong network effects and market tipping, the most significant competitive pressure to Facebook is from within its own family of products—Facebook, Instagram, Messenger, and WhatsApp—rather than from other social apps in the market, such as Snapchat or Twitter. In the case of messaging apps, Facebook’s documents show that network effects can be even more extreme. And because Facebook is not interoperable with other social networks, its users have high costs to switch to other platforms, locking them into Facebook’s platform“, p. 385/6);

4-Reduce Market Power Through Merger Presumptions (“Ongoing acquisitions by the dominant platforms raise several concerns. Insofar as any transaction entrenches their existing position, or eliminates a nascent competitor, it strengthens their market power and can close off market entry. Furthermore, by pursuing additional deals in artificial intelligence and in other emerging markets, the dominant firms of today could position themselves to control the technology of tomorrow“, p. 389);

5-Create an Even Playing Field for the Free and Diverse Press (“To address this imbalance of bargaining power, we recommend that the Subcommittee consider legislation to provide news publishers and broadcasters with a narrowly tailored and temporary safe harbor to collectively negotiate with dominant online platforms“, p. 390);

6-Prohibit Abuse of Superior Bargaining Power and Require Due Process (“By virtue of functioning as the only viable path to market, dominant platforms enjoy superior bargaining power over the third parties that depend on their platforms to access users and markets. Their bargaining leverage is a form of market power, which the dominant platforms routinely use to protect and expand their dominance. Through its investigation, the Subcommittee identified numerous instances in which the dominant platforms abused this power. In several cases, dominant platforms used their leverage to extract greater money or data than users would be willing to provide in a competitive market. While a firm in a competitive market would lose business if it charged excessive prices for its goods or services because the customer would switch to a competitor, dominant platforms have been able to charge excessive prices or ratchet up their prices without a significant loss of business. Similarly, certain dominant platforms have been able to extort an ever-increasing amount of data from their customers and users, ranging from a user’s personal data to a business’s trade secrets and proprietary content. In the absence of an alternative platform, users effectively have no choice but to accede to the platform’s demands for payment whether in the form of dollars or data“);

B:  <Strengthening the Antitrust Laws>

e in particolare:

1-Restore the Antimonopoly Goals of the Antitrust Laws ;

2-Invigorate Merger Enforcement ( e qui: a: Codify Bright-Line Rules and Structural Presumptions in Concentrated Markets, in particolare: “the Subcommittee recommends that Members consider codifying bright-line rules for merger enforcement, including structural presumptions. Under a structural presumption, mergers resulting in a single firm controlling an outsized market share, or resulting in a significant increase in concentration, would be presumptively prohibited under Section 7 of the Clayton Act. This structural presumption would place the burden of proof upon the merging parties to show that the merger would not reduce competition. A showing that the merger would result in efficiencies should not be sufficient to overcome the presumption that it is anticompetitive. It is the view of Subcommittee staff that the 30% threshold established by the Supreme Court in Philadelphia National Bank is appropriate, although a lower standard for monopsony or buyer power claims may deserve consideration by the Subcommittee“; b: Protect Potential Rivals, Nascent Competitors, and Startups, e qui “clarifying that proving harm on potential competition or nascent competition grounds does not require proving that the potential or nascent competitor would have been a successful entrant in a but-for world“; c: Strengthen Vertical Merger Doctrine);

3-Rehabilitate MonopolizationLaw (sotto i profili di  a: Abuse of Dominance; b: Monopoly Leveraging; c: Predatory Pricing; d: Essential Facilities and Refusals to Deal; e: tying; f: Preferencing and Anticompetitive Product Design);

4: Additional Measures to Strengthen the Antitrust Laws, tra cui : – clarifying that cases involving platforms do not require plaintiffs to establish harm to both sets of customers; … – clarifying that platforms that are “two-sided,”or serve multiple sets of customers, can compete with firms that are “one-sided”; … –  Clarifying that market definition is not required for proving an antitrust violation, especially in the presence of direct evidence of market power; … – Clarifying that “false positives”(or erroneous enforcement) are not more costly than “false negatives”(erroneous non-enforcement), and that, when relating to conduct or mergers involving dominant firms, “false negatives”are costlier

C: <Strengthening Antitrust Enforcement>

e in particolare:

1-Congressional Oversight;

2-Agency Enforcement (tra cui: – Triggering civil penalties and other relief for violations of “unfair methods of competition” rules, creating symmetry with violations of “unfair or deceptive acts or practices” rules; -Requiring the Commission to regularly collect data and report on economic concentration and competition in sectors across the economy, as permitted under section 6 of the FTC Act; -Enhancing the public transparency and accountability of the antitrust agencies, by requiring the agencies to solicit and respond to public comments for merger reviews, and by requiring the agencies to publish written explanations for all enforcement decisions; -Requiring the agencies to conduct and make publicly available merger retrospectives on significant transactions consummated over the last three decades; – Codifying stricter prohibitions on revolving door between the agencies and the companies that they investigate, especially with regards to senior officials; – Increasing the budgets of the Federal Trade Commission and the Antitrust Division)

3-private enforcement e qui: – Eliminating court-created standards for “antitrust injury” and “antitrust standing,” which undermine Congress’s granting of enforcement authority to “any person . . . injured . . . by reason of anything forbidden in the antitrust laws;” –   Reducing procedural obstacles to litigation, including through eliminating forced arbitration clauses and undue limits on class action formation; – Lowering the heightened pleading requirement introduced in Bell Atlantic Corp. v. Twombly