Cicilline Opening Statement for Markup of H.R. 3843, the “Merger Filing Fee Modernization Act of 2021”

Thank you, Mr. Chairman.

Before I turn to the historic bipartisan legislation the Committee will consider today, I want to take a moment to reflect on the comprehensive and painstaking investigative and oversight work that the Subcommittee completed over the past two years.

By every measure, the Committee’s Digital Markets Investigation stands as one of the most extensive and in-depth antitrust investigations in the history of Congress.

We launched our bipartisan investigation in June 2019. Since then, we held a total of 10 legislative and oversight hearings, and 17 Member roundtables and briefings.

We heard direct testimony from the CEOs of Google, Amazon, Apple, and Facebook for nearly six hours.
All told, 56 witnesses testified before the Subcommittee or Committee.


We interviewed more than 240 market participants and received written submissions from 60 leading antitrust experts and scholars.

We collected nearly 1.3 million documents from the investigated companies, third parties, and antitrust enforcement agencies.

In October of 2020, the Subcommittee issued a 450-page investigative report, setting forth specific, and concrete recommendations for a path forward.

The Digital Markets Report was approved by the full Committee on April 15, and, since then we have continued to move forward in a serious, thoughtful and deliberate manner.

As of June 11, we introduced each of the six pieces of legislation that we will consider today.

Both on process and substance—from June of 2019 through today—I am immensely proud of the Antitrust Subcommittee’s effort.

The legislation the Committee will consider at today’s markup is essential to build a better online economy with opportunity, innovation, and  for consumers, workers, and small businesses.

These bills are a direct and measured response to the competition problems we identified in our investigation and documented in our comprehensive report.

The digital marketplace suffers from a lack of competition. Many digital markets are defined by monopoly or duopoly control. Amazon, Apple, Facebook, and Google are gatekeepers to the online economy. They bury or buy rivals and abuse their monopoly power—conduct that is harmful to consumers, competition, innovation, and our democracy.

In testimony, submissions, and numerous interviews with Subcommittee staff, businesses of all types and sizes described how dominant platforms exploit their gatekeeper power to charge exorbitant fees, advantage their own products and services, impose oppressive contract terms, and extract valuable data from the people and businesses that rely on them.

Over and over, words like “fear,” “bullying,” and “hardship” came up in interviews.

App developers, third-party sellers, and even large publishers reported being victims of predatory behavior. According to these businesses, they are dependent on platform gatekeepers to connect with their users or customers because they have few, if any, other options. They feel trapped. They are, in fact, trapped.

By maintaining control over the infrastructure of the digital age, Facebook, Google, Amazon, and Apple can conduct surveillance to identify potential rivals, and ultimately buy or bury any competitive threats.

For example, during the investigation, the Subcommittee uncovered emails from Mark Zuckerberg to Facebook’s chief financial officer describing the purpose of purchasing Instagram as an opportunity to neutralize a competitive threat

Before his company was acquired, the co-founder of Instagram told an investor that he was worried Mr. Zuckerberg would go into “destroy mode” if he refused to sell the company. Facebook later acquired the surveillance company Onavo to identify other competitive threats, and then neutralize them through acquisition, cloning their features, or blocking them from Facebook’s platform.

During our legislative hearing in February on proposals to address online gatekeeper power, we received written testimony from Cliff Pemble, the CEO of Garmin, about this exact topic.

He noted that, as gatekeepers of the ecosystem for virtually all app developers, Apple and Google “have the ability and incentive to harm competition, and that “[t]hese super-dominant companies should not be allowed to use their ability to control key inputs and distribution as a sword to eliminate or impede competition.

Due to high barriers to entry in these markets—such as strong network effects and high switching costs—new entrants are unable to enter the market with better products or services to contest the dominance of these firms. In other words, businesses and consumers are stuck with few or no alternatives.

I want to be very clear about two things.

This problem is not just about market failure. At its core, this issue is fundamentally about whether or not we have an economy where businesses fighting for economic survival can actually succeed.

It is about whether our economic future is going to be defined by the success of the best businesses with the best ideas, or simply the biggest companies with the biggest lobbying budgets.

Second, this problem is fundamentally about what kind of country we want to live in. A country where Congress actually works for the people to tackle the major problems of our time, or a country where Congress does nothing in the face of the confusion, doubt, and delay caused by the same unregulated tech monopolies that want to see absolutely nothing change.

America has had enough.

According to multiple surveys over the past year, Republicans and Democrats agree on an overwhelming basis that these companies have too much power and that Congress must curb this dominance.

As Chairman Nadler has said, we must answer that call.

Today’s legislative package is the start of that effort.

The first bill we will consider today is H.R. 3843, the “Merger Filing Fee Modernization Act of 2021.” This is commonsense, bipartisan legislation that will provide a much-needed update to the fee schedule for mergers that require review by the Federal Trade Commission or the Department of Justice.

This bill updates merger filing fees for the first time in more than two decades to ensure that our antitrust agencies have the resources they need to enforce the law against the wealthiest companies the world has ever known.

The updated fee structure ensures that companies proposing the largest transactions will pay more because these transactions are likely to consume more agency resources. On the other hand, companies with transactions under $500 million will pay less under this bill than they currently do.

Earlier this month, this legislation was adopted by the Senate. It was previously approved by a voice vote by the Senate Judiciary Committee.

I thank Mr. Neguse for his leadership on this legislation. I encourage my colleagues to support this bill. I yield back.

Cicilline Opening Statement for Markup of H.R. 3460, the “State Antitrust Enforcement Venue Act of 2021”

Thank you, Mr. Chairman.

H.R. 3460, the “State Antitrust Enforcement Venue Act of 2021,” is a common sense solution that will enable state attorneys general to better enforce the antitrust laws and protect consumers and competition. It makes state antitrust enforcement more efficient and cost effective.

States play a key role in enforcing the antitrust laws. In many cases, they are crucial allies to the Federal Trade Commission and the Department of Justice. In others, state attorneys general step in and protect their citizens where federal enforcers have not done their jobs.

Earlier this year, Phil Weiser, the Attorney General of Colorado, and Doug Peterson, the Attorney General of Nebraska, each testified about the important role the states play and the work they are doing to protect and promote competition.

We see clear evidence of the leadership of state attorney generals in protecting their citizens from anticompetitive conduct by dominant online platforms.

In December, General Weiser led a bipartisan coalition of state attorneys general in filing a monopolization case against Google.

In another case, 15 states are taking action against Google.

New York Attorney General Letitia James is leading a coalition of 48 states in a monopolization case against Facebook. And, most recently, Washington, D.C. Attorney General Karl Racine filed an antitrust case against Amazon.

State attorneys general do critical work to protect their citizens and promote competition. Often, they do so with extremely limited budgets and staff.

This bill ensures that states are not forced to the waste precious time and resources that come with consolidating state actions with private actions, or by unnecessarily relocating to an inconvenient venue.

H.R. 3460, is sponsored by Congressman Ken Buck, my friend and the Ranking Member on the Antitrust, Commercial and Administrative Law Subcommittee.

I want to thank Congressman Buck for this thoughtful leadership on these issues. There is a lot we do not agree on. But we do agree that there are is a monopoly problem in the digital marketplace. We agree that Congress needs to fix it. We agree that further delay is not an option.

The legislation we are considering today is the result of months of painstaking and bipartisan negotiations. We have heard from dozens of stakeholders from industry, academia, public interest, legal practitioners, economists, and former enforcement officials.

Congressman Buck has been there each step of the way. He has been a tireless advocate for free markets and enforcing the laws. I thank him for his leadership, and I urge my colleagues to support H.R. 3460.

I yield back.

Cicilline Opening Statement for Markup of H.R. 3849, the “ACCESS Act of 2021”

H.R. 3849, the “ACCESS Act of 2021,” creates interoperability and data portability requirements for the largest online platforms. Interoperability and data portability will encourage new competition in digital markets by lowering barriers to entry for new firms and lowering switching costs for consumers.

The high levels of concentration in segments of the digital marketplace can be attributed, in part, to network effects, data advantages, and economies of scale and scope that advantage the largest platforms.

New competitors often face daunting barriers to entry. Consumers face high switching costs. Some markets become winner-take-all, locking in the dominance of a few firms and blocking new entrants from meaningfully competing.

The “ACCESS Act,” introduced by Congresswoman Scanlon, helps address high levels of concentration online and creates new opportunities for competition.

The “ACCESS Act” requires dominant online platforms be interoperable with other businesses. It also empowers users of dominant platforms to take relevant data to another service.

Data portability will empower consumers to switch to other services more easily.

They will not have to start over. They will not lose access to their list of friends, photos, communications, or seller ratings when they switch from one social network, e-commerce platform, or mobile operating system to another.

For example, a small business selling on Amazon will be able to take its customer reviews and other information to use on its own retail website, or on a rival e-commerce platform. An iPhone user would not lose access to her prior communications simply because she switched to an Android phone.

New competitors in these markets will have a better chance to convince users to switch. They will be able to compete by offering better prices, higher quality, or more privacy.

Interoperability will ensure consumers do not have to choose between communicating with users of the dominant platform and migrating to a platform that better serves their needs.

Interoperability opens new opportunities for competition. As a result, we will have a more dynamic digital economy and consumers will have more choices.

Interoperability and data portability are not without challenges. That is why the ACCESS Act directs the Federal Trade Commission to establish technical committees bringing together industry, government, academic, and other experts to help design interoperability that works.

The key is to get it right, so that the interoperability requirements under this bill effectively promote competition and reduce the need for government oversight and intervention.

This bill also includes enforcement mechanisms to deter dominant platforms from undermining the interoperability and data portability requirements.

Additionally, the ACCESS Act includes strong safeguards to protect privacy and security. Any transfers of data from one business to another under this bill may only occur at the express direction of the user. Online firms are required to minimize the data they use and share to make services interoperable.

By opening up new opportunities for competition, the ACCESS Act promotes new investment and innovation. Small businesses and startups will have more opportunities to attract users.

Rather than resting on their laurels and relying on their ability to lock consumers in, the dominant platforms will have to rededicate themselves to improving their products and keeping their users happy. They will have a compete in a more dynamic marketplace, spurring more investment and innovation.

Consumer and public interest advocates at Consumer Reports, Public Knowledge, the Electronic Frontier Foundation, and New America’s Open Technology Institute have all called for interoperability requirements as a way to promote more competition online.

I agree with them. This is important and common sense legislation. Consumers will benefit. They will have more choices. They will have access to more products and services that compete on metrics such as privacy, quality, and security.

Thank you Congresswoman Scanlon for your leadership on this issue. I encourage my colleagues to support the ACCESS Act. I yield back.

 

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