Respite for Big Tech as Senate Vote on Antitrust Bill Gets Delayed Until Fall
Senate Majority Leader Chuck Schumer is planning to put the much-anticipated American Innovation and Choice Online Act to vote when Congress returns from a five-week August recess.
A bipartisan antitrust bill intended to rein in antitrust practices in the technology industry won’t see the light of day, at least not before the fall session of the U.S. Congress. According to the Wall Street Journal, Senate Majority Leader Chuck Schumer (D, NY) plans to put the much-anticipated American Innovation and Choice Online Act to vote when Congress returns from the August recess.
The U.S. Congress prioritized the new semiconductor incentives under the CHIPS Act, the controversial abortion policy, tax, healthcare packages, and other legislation, pushing the vote for the antitrust bill to fall just ahead of the midterm elections scheduled in November.
The latest development is a stark reminder of the lobbying pervasive in the deepest chambers of Capitol Hill. Big Tech, or the four or five biggest and most dominant companies in the U.S. tech sector, is notorious for its lobbying efforts to derail or weaken legislation that could be detrimental to their business.
For instance, The Markup reported earlier this year that Big Tech companies Amazon, Apple, Facebook, Google, and Microsoft cumulatively have at least 445 lobbyists (possibly more) and lobbying firms across 31 states in the U.S. on their payroll.
However, it also underscores the notion that the bill doesn’t have support from senators. “If the bill had the support its supporters contended, it wouldn’t be a bill, it would be a law,” said Matt Schruers, president of the Computer & Communications Industry Association (CCIA), to the WSJ. CCIA counts Amazon, Alphabet, Apple, and Meta among its members.
As of July 2022, Schumer wasn’t convinced that the American Innovation and Choice Online Act had enough support. The antitrust bill is backed primarily by Democrats, with some still on the fence. It also has some Republican support. However, it isn’t enough to garner 60 required votes to overcome a filibuster and proceed to a full vote.
That wouldn’t matter come fall after the five-week August recess considering the agenda is expected to be jam-packed, and scheduling it in is going to be tight. “We continue to have very strong bipartisan support in both chambers, and the votes to pass it in both chambers,” Rep. David Cicilline (D, RI) said. “It’s really just a matter of getting it on the calendar.”
Meanwhile, WSJ reported that Senators Amy Klobuchar (D, MN) and Chuck Grassley (R, IA) are holding bipartisan meetings to amass support for the bill if it goes to vote in September.
Klobuchar, who penned Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age, stated in October last year, “American prosperity was built on a foundation of open markets and fair competition, but right now our country faces a monopoly problem, and American consumers, workers, and businesses are paying the price.
“As dominant digital platforms – some of the biggest companies our world has ever seen – increasingly give preference to their own products and services, we must put policies in place to ensure small businesses and entrepreneurs still have the opportunity to succeed in the digital marketplace. This bill will do just that, while also providing consumers with the benefit of greater choice online.”
See More: Open App Markets Act Makes It To the Senate: Here’s How It’ll Impact the App Economy
The American Innovation and Choice Online Act is written to give teeth to the government to challenge self-preferencing activities. Specifically, the bill in its current form addresses ten self-preference behaviors listed below.
- Unfairly preference its products, services, or lines of business over others
- Unfairly limit the ability of another business user’s products, services, or lines of business to compete on its platform in a manner that would materially harm competition on the covered platform.
- Discriminate in the application or enforcement of its terms of service among similarly situated business users in a manner that may materially harm competition on the covered platform
- Materially restrict the capacity of a business user to access or interoperate with the same platform, operating system, hardware or software features available on its platform.
- Give conditional access, preferred status or placement on its own platform if they purchase or use any product or service which is not offered by the platform itself.
- Use non-public data obtained from consumers buying from third-party sellers to promote sales of the platform’s own products.
- Materially restrict or impede a seller/business user from accessing third-party data generated on the platform.
- Materially restrict or impede its users from un-installing preinstalled software or changing default settings that direct or steer toward its products or services.
- Manipulate search or functionality to preference the platform’s products over those of third-party sellers—in short, requiring neutral, fair, and non-discriminatory treatment; or
- Manipulate search or ranking functionality that can lead to a preference for its own products and services
- Retaliate against any seller/business or any other user that raises concerns with any law enforcement authority about actual or potential violations of State or Federal law.
The scope of the American Innovation and Choice Online Act is limited to the largest online platforms, such as Amazon (the largest online retailer), Google (the largest search engine and online advertising platform), Apple (the largest mobile app store by revenue), and Meta (largest social networking company).
The legislation defines the largest online platforms as those which have (1) at least 50 million U.S-based monthly active users or 100,000 U.S-based business users), (2) annual net sales or market capitalization of $550 billion, and (3) is a critical trading partner for its sellers/business users.
Amazon has previously stated the bill singles out the company “while giving preferential treatment to other large retailers that engage in the same practices.” Apple and Google have also expressed concerns about the bill.
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