Sep 20 2019
Earlier this summer, the Department of Justice and the Federal Trade Commission separately announced that each agency had begun investigating the large tech firms to see if they have violated the antitrust laws.
This is welcome news. The federal government should bring much-needed antitrust scrutiny to these companies.
Unfortunately, it appears that these two government agencies are not cooperating on their investigations. Instead of abiding by a clearance process designed to make sure a single agency is tasked to investigate each specific monopoly investigation, it appears as though the DOJ and FTC are both spending duplicative resources investigating the same companies for the same alleged anticompetitive behavior.
Not only does duplicative antitrust investigations waste taxpayers resources, but it can also undermine the rule of law when the agencies reach differing legal conclusions about the same antitrust law enforcement action.
Just this summer, the FTC and DOJ faced off against each other in the Ninth Circuit Court of Appeals. The FTC was in court defending a district court ruling it had won against Qualcomm ordering the company to end its practice of not selling chips to phone manufactures unless those same companies agreed to license Qualcomm patents. The DOJ argued that the injunction harmed competition by crippling the supply of needed wireless technology for the federal government. What is the federal government’s position on this area of antitrust law? With two agencies taking two different positions it is impossible to tell.
This week, as chairman of the Judiciary Committee’s Subcommittee on Antitrust, Competition Policy, and Consumer Rights, I asked FTC Chairman Joseph Simons and Assistant Attorney General for the Antitrust Division Makan Delrahim if cooperation between the agencies on big tech antitrust enforcement had broken down.
“Yeah I would agree with that,” Simons said.
“I cannot deny that there are instances where Chairman Simons and my time is wasted on those types of squabbles,” Delrahim added.
Later when asked if it would be better if one agency was in charge of federal antitrust enforcement, Simons testified, “Ideally, you really do just want one agency from the federal government doing it for no other reason than the resources that one of us is duplicating on the other could be applied to an entirely different enforcement action or investigation.”
American consumers deserve to have the best antitrust law enforcement possible. One that is not wastefully administered by two separate agencies that come to differing conclusions and prevent more antitrust enforcement actions from occurring.
We need robust investigations and enforcement of the antitrust laws, especially in the tech arena. That objective is likely to be hindered if the agencies are stumbling over each other trying to investigate the same companies for the same conduct. Such efforts will be wasteful and could very well undermine their ability to enforce the antitrust laws. I wouldn’t recommend that they get any additional resources until they demonstrate their willingness to put the interests of consumers above their bureaucratic gamesmanship.