US unveils tech antitrust push

Posted July 19, 2023

Antitrust officials have released guidelines that, for the first time, focus on “digital platforms and how dominant companies can use their scale to harm future rivals,” writes The New York Times. Both the Federal Trade Commission and the Justice Department drafted the directives, which steer regulators in decisions on proposed mergers and acquisitions. The guidelines aren’t law and follow losses by the FTC in court on efforts to block deals, including Meta’s buy of app maker Within and the purchase of Activision Blizzard by Microsoft, LinkedIn’s parent company.

Aimed at tech giants such as Meta and Google, the guidelines also seek to prevent so-called killer acquisitions that eliminate competition, the Times notes.

By Cate Chapman, Editor at LinkedIn News

Recently, Lina Khan’s FTC sent OpenAI a 20-page demand for records** about how it addresses risks related to its AI models, a document reviewed by The washingtonpost.com said^^

The salvo is the most potent regulatory threat to date against OpenAI and, perhaps, AI itself, even as Sam Altman, the poster boy, continues a global charm offensive to shape the future

OpenAI’s ChatGPT has been described the fastest-growing consumer app in history, & as WaPo says rightly, its early success has set off an arms race among Silicon Valley companies to roll out competing chatbots

“Altman, has emerged as an influential figure in the debate over AI regulation, testifying on Capitol Hill, dining with lawmakers and meeting with President Biden & Vice President Harris”

^^ https://lnkd.in/dtpKZXk2
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The Wall Street Journal believes this is Khan’s attempt for a regulatory gap: https://lnkd.in/dhBfHpGj
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Khan’s own views are in this signed The New York Times** op-ed, “…as companies race to deploy & monetize AI, the FTC is taking a close look at how we can best achieve our dual mandate to promote fair competition & to protect Americans from unfair or deceptive practices. As these technologies evolve, we are committed to uphold America’s longstanding tradition of maintaining open, fair & competitive markets that have underpinned both breakthrough innovations & our nation’s economic success — without tolerating business models or practices involving the mass exploitation of their users. Although these tools are novel, they are not exempt from existing rules, & the FTC will vigorously enforce the laws we are charged with administering, even in this new market

While tech is moving swiftly, we already can see several risks. The expanding adoption of A.I. risks further locking in the market dominance of large incumbent tech firms. Powerful businesses control the necessary raw materials that start-ups & other companies rely on to develop & deploy AI tools. This includes cloud services & computing power, as well as vast stores of data

Enforcers & regulators must be vigilant. Dominant firms could use their control over key inputs to exclude or discriminate against downstream rivals, picking winners & losers in ways that further entrench their dominance. Meanwhile, the AI tools that firms use to set prices can facilitate collusive behavior that unfairly inflates prices — as well as forms of precisely targeted price discrimination. Enforcers have dual responsibility of watching out for the dangers posed by new AI tech while promoting the fair competition needed to ensure the market for these technologies develops lawfully. FTC is well equipped with legal jurisdiction to handle the issues brought to the fore by the rapidly developing AI sector, including collusion, monopolization, mergers, price discrimination & unfair methods of competition”
— **https://lnkd.in/dwq-hgpb

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A Momentous Week in US Antitrust.

On July 11, US District Judge Corley ruled that the Federal Trade Commission (FTC) failed to demonstrate that Microsoft’s acquisition of Activision would harm competition in the gaming industry. A few hours later, the UK’s Competition and Markets Authority (CMA) flopped and announced it was open for business again (trying to walk back cautiously). And on Friday, the Court of Appeal for the Ninth Circuit rejected the FTC’s last-ditch effort to stop the merger, effectively paving the way for its completion. It’s worth noting that the European Commission had already approved the merger in May, recognising its pro-competitive effect.

While this proves to be a setback for the FTC, it is crucial to acknowledge that there is much more at play here, and this is not the end of the story. It is about a greater battle for the future of US Antitrust and the imperative for US enforcers to remain relevant amidst the digital era.

At the heart of it is a fundamental difference of perspectives between the traditional Chicago School approach, which emphasises consumer welfare and immediate consumer pricing, and the more holistic perspective known as “Neo-Brandeis” (sometimes dubbed as “hipster” antitrust by their detractors) championed by a new generation of scholars, including FTC Chair Lina Khan, and the former Special Assistant to President Biden and Columbia Professor Tim Wu, among others. The latter focuses on broader market conditions and the conduct of dominant players, aiming to catch up with the EU’s progressive antitrust policies. As Lina Khan said in her 2019 interview with FT: “This isn’t just about antitrust. It’s about values” (https://on.ft.com/46QmHNO).

Has Lina Khan overreached (as suggested by the FT Editorial Board https://on.ft.com/3JZL165)? Absolutely not. It is clear that her pursuit of modernising US Antitrust is long overdue and necessary. But as former FTC Chair Kovacic noted: “If you want a durable change in policy and doctrine, you have to win cases”.

FTC Loses Latest Bid to Halt Microsoft-Activision Merger

LinkedIn News, US unveils tech antitrust push

Adam Lee