The United States considers boarding the tech regulation train

The United States considers boarding the tech regulation train - capitol 720677 1280

On August 24th, the US Federal Trade Commission (FTC) announced the opening session of its Hearings on Competition and Consumer Protection in the 21st Century. Starting in September, these hearings will ‘examine whether broad-based changes in the economy […] require adjustments to competition and consumer protection enforcement priorities of the Commission’. A focus on new technologies is readily apparent, as topics include anti-competitive practices by online platforms, acquisitions of nascent competitors in digital markets, privacy, big data, and algorithms.

The FTC’s soul-searching exercise is not an isolated event. Several relevant actors in the US are currently considering whether and how to regulate (competition in) the technology sector. In this blog post, I shortly discuss a number of these initiatives, and the reasons underlying them.

Underlying reasons

Contrary to the EU, the US has shied away from seriously regulating tech companies. As most of the big tech companies originate from the US, the EU’s regulatory zeal has led to allegations of protectionism. (A sceptic could counter that the US’s lack of oversight is a sign of protectionism.) Recently, however, the US has been warming up to the idea of regulation. While there a number of reasons for this shift, two stand out.

Firstly, there is a growing concern over concentration of the US economy. A number of recent studies from academia (here, here and here) and journalism have shown an increase in economic concentration in the US (for a critical note, see here). As industries are dominated by a small number of companies, competition decreases and corporate profits rise. This tendency is particularly strong in the tech sector.

A second concern, even more closely related to tech companies, is democracy. In the wake of revelations regarding Russian meddling in the 2016 election, Americans have grown worried about the effects of big tech on the democratic process. A recent poll found that 55% of Americans are now concerned that the government won’t do enough to regulate how US tech companies operate, citing election interference as an important factor.


Politicians and agencies in the US are now starting to act on the above concerns. The FTC’s hearings, mentioned above, may not change anything in and of themselves, but they may prelude a more fundamental shift in antitrust enforcement. In that regard, the Republican chairman of the FTC has promised ‘vigorous enforcement’ of Silicon Valley, and has stated that he’s even prepared to ask Congress for legislation. Aside from the hearings, two other initiatives are worth discussing.

Last year, the Democrats unveiled their Better Deal agenda for the American people. With regard to competition, it entails the plan to ‘revisit our antitrust laws to ensure that the economic freedom of all Americans—consumers, workers, and small businesses—come before big corporations that are getting even bigger.’ More specifically, Democrats propose to (i) establish new standards to limit large mergers that unfairly consolidate corporate power; (ii) strengthen post-merger review; and (iii) install a new consumer competition advocate. The upcoming midterm elections will help determine how feasible it is to put this plan into practice.

While the Better Deal agenda on competition references big data and online platforms, one Democratic senator—Mark Warner from Virginia—has gotten more specific. In a paper prepared by his office and scooped by Axios on July 30th, Warner puts forward 20 proposals to resolve the problems of big tech. These proposals are structured around two areas of focus, namely (i) combatting disinformation campaigns on social media, with a special focus on Russian election interference; (ii) guaranteeing consumer protection in the digital age, especially when it comes to the use of personal data; and (iii) safeguarding competition and innovation in a high-tech landscape dominated by a few platforms.

The proposals themselves are wide-ranging, and a number of them are inspired by European precedents. One suggestion, for example, is to adopt comprehensive ‘GDPR-like’ data protection legislation. Others go even further, including an obligation for platforms to be transparent with regard to the value of data users surrender to it. On the competition front, the most striking proposal seeks to designate some platforms as ‘essential facilities’ (an idea also floated by EU Commissioner Vestager). This would imply an obligation to provide access to third parties on fair, reasonable and non-discriminatory (FRAND) terms, and a prohibition to prioritize their own services over those of third-parties using the platform.

The paper has its flaws (as recognized by the drafters), and whether any proposal will make it into law depends—once more—in no small part on the results of the midterm elections. If nothing else, however, this paper—along with the initiatives discussed above—show how not only the American people, but also its politicians and agencies are increasingly concerned about the effects of big tech on society. The initiatives themselves merit critical discussion, but that will require another couple of blog posts.



Friso Bostoen

Blog Editor

Assistant Professor of Competition Law and Digital Regulation, Tilburg University

Friso Bostoen is an assistant professor of competition law and digital regulation at Tilburg University. Previously, he was a Max Weber Fellow at the European University Institute. He holds degrees from KU Leuven (PhD, LLM) and Harvard University (LLM). Friso’s research focuses on antitrust enforcement in digital markets. His work has resulted in numerous international publications, presentations, and awards (including the AdC Competition Policy Award 2019 and the Concurrences PhD Award 2022). In addition, Friso edits the CoRe Blog and hosts the Monopoly Attack podcast.

>> Friso’s CoRe Blog posts >>

Hinterlasse eine Antwort

Zusammenhängende Posts

18. Mrz 2024
von Daniel Mandrescu
competition law, abuse of dominance, apple app store, the digital markets act

The Apple App Store – A New Kind of Hallmark Case

After almost three years since the Commission sent Apple its statement of objections, which was significantly trimmed down, the Commission reached a finding of abuse for which it imposed a whopping fine of 1.8 billion euros. Alongside this case, Apple was also involved in an almost identical case running parallel in the Netherlands, with similar findings. Meanwhile, during these procedures, […]
04. Jan 2024
Features von Friso Bostoen
antitrust books

The antitrust books you should’ve read in 2023

This fifth edition of ‘the antitrust you should’ve read last year’ has three entries. This is notably fewer than the four to six books included the previous years, which is due either to a slow year in antitrust publishing, or to my starting a new job and having less time to read. There were also some last-minute contenders such as […]
07. Nov 2023
Features von Daniel Mandrescu
app store, apple, abuse of dominance, platforms, ACM, art. 102 TFEU.

The ACM vs. Apple AppStore – A Second Chance To Get It Right

The Dutch case concerning the Apple App Store appears to make a (welcome) comeback. The case that started in 2019 came to a rather disappointing end in the summer of 2022 when the Dutch competition authority issued a public statement that gave the impression that it was satisfied with Apple’s adjustments to the App Store front in the Netherlands. This […]
26. Okt 2023
von Daniel Mandrescu
airport travel

Booking / eTraveli: assessing envelopment strategies and mixing up market power thresholds

About a month ago the European Commission announced that it was prohibiting the acquisition of eTraveli by Booking Holdings ( The prohibition, which is a rare occurrence in itself, did not attract much attention beyond comments on the ‘ecosystem’ theory of harm which it may have introduced. But this case offers more than that. First, it shows that current practice […]
12. Sep 2023
Features von Daniel Mandrescu
Microsoft teams antitrust claim, abuse of dominance, European commission

Microsoft III – Paving The Way To A Tying Trilogy?

This summer the European commission (finally) announced it will start a formal investigation against Microsoft following Slack’s complaint concerning the (abusive) tying or bundling or Teams to the Microsoft and Office 365 suites. Not long after, Microsoft came out with an official statement concerning the changes in its pricing and distribution strategy  of Teams it will introduce in order to […]
18. Jan 2023
Features von Daniel Mandrescu
competition law, abuse of dominance, refusal to supply, Lithuanian railways, bronner, essential facility, art. 102 TFEU

Case C-42/21P Lithuanian Railways – another clarification on the Bronner case law and the non-exhaustive character of art. 102 TFEU

The recent case of Lithuanian Railways provides yet another clarification on the scope of application of the Bronner case law. The Judgement of the CJEU reconfirms exceptional character of the Bronner case law and the type of situations it is intended to apply to. By doing so the CJEU potentially helps prevent future disputes of a similar  nature in the […]
03. Jan 2023
Features von Daniel Mandrescu
facebook, competition law, abuse of dominance, art. 102 TFEU, multisided platforms, dominant position, tying and bundling, unfair trading conditions, competition economics, european commission,

On-platform Tying or Another Case of Leveraging- A Discussion on Facebook Marketplace

Just before 2022 ended the Commission sent a statement of objections to Meta regarding the potential abusive behaviour of Facebook. According to the statement of objections, Facebook may be engaging in (i) abusive tying practices with regard to Facebook Marketplace as users (i.e. consumers) that log into Facebook and are automatically also offered access to the Facebook Marketplace, without the […]
15. Nov 2022
Features von Daniel Mandrescu
abuse of dominance, competition law, art. 102 TFEU, railways, regulation, DMA, excessive pricing, unfair pricing, private enforcement, stand alone claims

Case C-721/20 – DB Station & Service – Can secondary legislation limit the private enforcement of art. 102 TFEU?

Last month the CJEU delivered an interesting ruling on the scope of application of art. 102 TFEU when dealing with excessive or unfair prices in the railway sector. A first reading of the final conclusion of the CJEU would give the impression that the scope of application of art. 102 TFEU is being unduly restricted with this case by making […]
26. Sep 2022
von Carlo Monegato
The modernisation of EU merger control - State Aid Uncovered SM posts 1 2

The modernisation of EU merger control

THE MODERNISATION OF EU MERGER CONTROL The long-awaited judgment in the Illumina/Grail art. 22 EUMR dispute was announced on 13 July 2022. The General Court confirmed that the European Commission has the power to decide on a merger, referred to it by a Member State, that does not meet the EU thresholds nor was it notified nationally. What follows is […]
26. Apr 2022
von Enrico Di Tomaso
Eventim/Ticketone v. AGCM – May acquisitions be prosecuted pursuant to Article 102 TFEU? - EventimTicketone 1

Eventim/Ticketone v. AGCM – May acquisitions be prosecuted pursuant to Article 102 TFEU?

With judgment no. 3334 of 24 March 2022, the Rome Administrative Court of 1st instance (TAR Lazio-Roma) has annulled the decision issued by the Italian Competition Authority (“AGCM”) on 22 December 2020, no. 28495. The above TAR Lazio judgment (“the “Judgment”) is noteworthy because it deals with the possibility of AGCM (and of national competition authorities at large) to apply […]

Melden Sie sich für unseren Newsletter an, um regelmäßig über unsere kommenden Konferenzen, Lexxion Trainings, Vor-Ort-Workshops und die neuesten Veröffentlichungen von Lexxion informiert zu werden.

Verpassen Sie keine Neuigkeiten und abonnieren Sie unseren kostenlosen Newsletter. Jetzt anmelden!