Congress Cannot Let Tech Competition Fall By The Wayside | Opinion

Last year, the House Judiciary Committee's Antitrust Subcommittee published a landmark report spelling out how Big Tech maintains a tight grip on the digital economy. While the 400-page report drew much-deserved attention to the ways social media platforms abuse their dominance of the web, Congress has yet to take meaningful action to curb their exploitative conduct. Now more than ever, policymakers must address the looming economic threat posed by our nation's most powerful companies.

The report's conclusions were what many expected. Lawmakers found numerous instances of Amazon, Apple, Google and Facebook exploiting their monopolies. For instance, Amazon was found to be cloning high-selling products of small merchants, and then directing search results towards its own version of the products—brazen violations of free and fair competition. Google, meanwhile, extracts snippets of newspaper content to drive up advertising revenues, without compensating newspapers for their value added.

The subcommittee's ominous warnings did not go unrecognized. The House Judiciary Committee passed a package of bipartisan bills in June that aim to enhance antitrust enforcement, plug gaps in antitrust law with regulatory solutions and give policymakers necessary tools to hold Big Tech accountable. But the bills have largely remained at a standstill since then, with lawmakers facing myriad competing policy interests.

As Big Tech swallows more of the internet, Congress cannot afford to lose the momentum with which it approached competition policy a year ago. The firms highlighted in the House report have only continued to amass obscene bounties in the time since. For example, Amazon's latest quarterly earnings saw the company rake in a net income of $7.8 billion—up roughly 50 percent from a year ago, in large part off the backs of its small merchants.

The COVID-19 pandemic has allowed America's largest tech companies to further crowd out the market. While these firms were already dominant long before its outset, a public health crisis meant that more Americans grew reliant on Big Tech and its services, whether they be e-commerce or digital advertising.

Amazon distribution center
An US giant Amazon employee passes by its logo on the opening day of the new distribution center in Augny, eastern France, on September 23, 2021. SEBASTIEN BOZON / AFP/Getty Images

Small businesses and startups are bearing the cost. A less competitive economy could mean fewer entrepreneurs willing to invest in their next big idea because they're worried about a larger company stealing it. One Harvard study found that "affected" sellers on Amazon's platform, against which Amazon competes directly, reduce the number of products they offer on Amazon by roughly 24 percent relative to unaffected sellers.

Unfortunately, smaller competitors have no venue for lodging discrimination complaints against a dominant platform. As I explained in my testimony to the subcommittee, antitrust provides no refuge for such complaints. Rep. David Cicilline's non-discrimination bill (HR 3816) would offer a lifeline to merchants on Amazon's Marketplace, app developers on Apple's App Store and websites on Google.

While Big Tech thrived at the expense of consumers and Main Street businesses over the last decade, our nation's antitrust laws were weakened by a series of pro-monopoly judicial decisions that culminated in Ohio v. American Express. The House report called on Congress to override this dreadful decision—which placed fresh evidentiary burdens on antitrust plaintiffs and eliminated ways to establish market power—along with other pro-monopoly precedents.

Yet when it comes to revitalizing antitrust law, Congress has let its foot fall off the gas.

With Congress at an impasse, state leaders have begun taking antitrust efforts into their own hands. Attorneys general from Texas to Colorado have led the charge in ensuring that our nation's dominant corporations play by the rules. And at the Federal Trade Commission, Chair Lina Khan has taken an aggressive approach to prevent the gatekeepers of our modern economy from stifling innovation.

These are all steps in the right direction. Strong enforcement remains critical in creating a fairer and more competitive economy. But unless we modernize our nation's antitrust laws and plug gaps with regulatory solutions, these actions will fall short. To address the power held by a few monopolistic companies, the competition package making its way through Congress is the best place to start. While it is not perfect, it is a reasonable place to begin to regulate an industry proven to be rife with abuse.

Although there's much going on in Washington, bolstering our competition policies should remain front and center for policymakers. We can no longer afford to sit on the sidelines while a few companies plunder the wealth of smaller businesses. Congress must pave the way for a competitive economy where independent businesses have a shot at the American dream.

Hal Singer is a managing director at Econ One, a litigation consulting firm, and an adjunct professor at Georgetown's McDonough School of Business. He has advised the newspaper trade association on legislation relating to their dealings with Google and Facebook. His firm is also involved in antitrust litigation adverse to certain dominant platforms.

The views expressed in this article are the writer's own.