Big Tech Finds Itself in Washington’s Antitrust Crosshairs

The U.S. government has set the stage for formal inquiries and escalated pressure on Silicon Valley companies amid increasing criticism that their practices are harming competition in digital markets.

by David McLaughlin, Bloomberg News / June 4, 2019
Shutterstock

(TNS) — Technology giants are girding for sweeping investigations into their business practices as top U.S. antitrust officials and lawmakers carved out a battle plan targeting Silicon Valley’s best-known names, sending shares tumbling and raising the prospect of a drawn-out fight with the government.

The House Judiciary Committee said late Monday it plans a bipartisan investigation into whether digital platform companies are using their market power to harm competition. That move heightens scrutiny of Alphabet Inc.’s Google, Amazon.com Inc. and Facebook Inc. after news that top antitrust officials have agreed to divvy up oversight of several technology giants.

The Federal Trade Commission will take responsibility for antitrust probes of Facebook and Amazon, while the Justice Department is set to open an investigation of Google, according to people familiar with the matter. The Justice Department will also oversee scrutiny of Apple Inc., one of the people said.

By parceling out antitrust oversight, the U.S. government has set the stage for formal inquiries and escalated pressure on the companies amid increasing criticism that their practices are harming competition in digital markets. After years of being hands off on the industry, enforcers are on the verge of opening broad investigations that could yield significant changes to how the companies do business and potentially lead to a break up of a company.

“It has been building to a fever pitch of over the last six to 12 months,” said Michael Carrier, a law professor at Rutgers University. “There’s general unease these companies have too much power, and it really crosses the political aisle.”

Shares of technology companies fell on the news of the broad agreement between the Justice Department and the FTC, which could have ramifications across the industry. They also have to contend with the inquiry by the House’s antitrust panel, led by Rep. David Cicilline, a Rhode Island Democrat.

“This is a very serious investigation. It will be very broad. We will conduct hearings, we will conduct witness interviews, we’ll do depositions, we’ll do document requests,” Cicilline said.

Alphabet dropped 6.1% to $1,036.23 in New York. Amazon fell 4.6% to $1,692.69, while Facebook slid 7.5% to $164.15, the most since July 2018. Apple shares fell 1% to $173.30.

Google, Facebook and Amazon declined to comment, as did the Justice Department and the FTC. Apple didn’t immediately respond to requests for comment.

The antitrust division of the Justice Department and the FTC share antitrust enforcement and typically agree to divide up scrutiny of companies depending on their expertise. Over the years they have passed Google back and forth. Under an earlier agreement, the FTC oversaw a broad investigation into Google’s search practices, while the antitrust division reviewed mergers in the advertising and online travel sectors.

Some say the Justice Department has a slight advantage over the FTC because the head of the antitrust division can decide to open an investigation or bring a case, while the FTC needs a majority vote of its five commissioners, three of whom represent the party in the White House. Even though the FTC was criticized for closing the Google investigation without action in 2013, it’s won important cases against Qualcomm Inc. for abusing its monopoly in chips and against pharmaceutical companies over deals inhibiting generic-drug competition.

Open Markets Institute Executive Director Barry Lynn, a proponent of aggressive antitrust enforcement, cautioned that the FTC shouldn’t be viewed as a weaker antitrust enforcer than the Justice Department. FTC commissioners are more likely to face political pressure to act from the press, activists and politicians, he said.

“I am very hopeful that it means something,” Lynn said about the agreement to divide up scrutiny of the tech giants. “They certainly have the intellectual ability to do this. They have the power do this. Do they have the will? Do they have the political clearance? Do they have the time to do this before the government changes? We don’t know.”

The companies have come under heightened criticism over their dominance in respective markets and claims that they are thwarting competition to the detriment of consumers. Complaints are specific to each company but stem from their role as digital platforms that have gained outsized market shares.

The tech firms are grappling with increasing antagonism in Washington, where Republicans and Democrats have called for tougher scrutiny of their conduct. Democratic Presidential candidate Elizabeth Warren is calling for breaking up tech giants, while President Donald Trump has railed against social media companies for suppressing conservative views.

That criticism has put pressure on enforcers to scrutinize the companies after years of standing back. Earlier this year, the FTC set up a task force to examine the conduct of tech firms to determine whether they are violating antitrust laws. It will also look at past mergers in the industry that could potentially be unwound if they are found to have harmed competition.

The task force, which is in the information-gathering stage, had a listening session in San Francisco last month to hear about competitive dynamics in the tech industry, including potential anticompetitive conduct, according to a person familiar with the matter.

While Google is still in the dark about the focus of the investigation and hopes to learn more this week, according to a person familiar with the situation, antitrust scrutiny could center on its large or majority market share in several important industries, including online advertising, Internet browsers, mobile operating systems and email.

At stake is the Internet giant’s position as one of the most profitable companies in history.

One area at Google where U.S. investigators will likely look closely is its role in the online advertising ecosystem. Google sells much of the online real estate available to advertisers, such as search ads and spots that play before YouTube videos. It also controls the system that many advertisers use to place and track ads on non-Google websites through its DoubleClick unit.

Google already has a well-defined set of arguments for pushing back against antitrust challenges, honed over years of doing battle with regulators, especially the European Union.

The EU has brought three cases against Google, including how it ranked shopping-comparison sites in search results, requirements for how customers use its display ads network, and its practice of requiring phone makers that used its Android software to pre-load those phones with other Google apps.

Google may rely on a strategy it used successfully in the earlier investigation by the FTC. During the two-year inquiry into its search practices, the company ramped up lobbying in Washington and funded academics to defend it, said Maurice Stucke, a former Justice Department lawyer who teaches antitrust law at the University of Tennessee. The company may argue that the global nature of the Internet means it doesn’t actually have the power that its critics say it does, pointing to companies such as Amazon or Tencent Holdings Ltd.

Facebook also controls a large piece of the digital advertising market, though criticism of the company goes much further. Facebook has been under fire over its role in allowing Russian actors to interfere in the 2016 U.S. presidential elections. Also raising hackles is Facebook’s failure to shield users from harmful content or protect the privacy of people who give up personal information in exchange for access to its social network. In recent months, pundits and former Facebook employees have publicly advocated for a breakup of the company.

Facebook would argue that a breakup scenario doesn’t address any of those concerns, according to a person familiar with the company’s thinking, and that users have myriad alternatives for social networking, such as Twitter, LinkedIn, YouTube, Snapchat and the teen video app TikTok, to name a few.

The antitrust debate about Amazon has focused less on the company’s raw market share, and more on its potential to dominate multiple sectors because it operates the biggest online retailer. The EU is investigating whether Amazon uses data about the third-party merchants who sell on its retail site to give the company an advantage when it sells its own products. Warren has suggested that Amazon should be barred from competing with the smaller players that sell their wares on its marketplace.

(With assistance by Gerrit De Vynck, Billy House, and Naomi Nix.)

©2019 Bloomberg News. Distributed by Tribune Content Agency, LLC.

Platforms & Programs