FTC Hearings on Competition & Consumer Protection in the 21st Century
Over the last 12 months, the Federal Trade Commission (FTC) held a series of hearings on Competition and Consumer Protection in the 21st Century. Throughout this dialogue, the International Center for Law and Economics (ICLE) has had a significant presence, including testimony at eight different sessions from ICLE President Geoffrey Manne, ICLE Director of Law and Economics Programs Justin (Gus) Hurwitz, and affiliate scholars Joshua D. Wright, Christopher Yoo, and Keith Hylton. ICLE also filed ten written comments, culminating in our filing at the end of June, Summing up the FTC hearings: Advocates for increased antitrust intervention failed to make their case.
Following are our key takeaways on some of the main issues discussed at the hearing. Below that are links to our contributions organized issue-by-issue and hearing-by-hearing.
Overview
The Consumer Welfare Standard
Opponents of the consumer welfare standard seek to return antitrust to the bygone era of courts arbitrarily punishing firms for successfully outcompeting their rivals or simply growing “too large.” The Commission should tread carefully before incorporating these ideas, which, during the course of its evolution in the 20th century, antitrust law carefully and correctly selected out.
Vertical Mergers
Based on the testimony heard during the hearings, there is no need to change the non-horizontal merger guidelines. If anything, vertical merger review should be pared back out of a recognition that the failure to account for dynamic effects (and the inherent difficulty of doing so) means it is likely that pro-competitive mergers are being deterred.
Vertical Discrimination
Concerns regarding vertical discrimination are predicated on the erroneous assumption that big tech platforms might be harming competition by favoring their content over that of their complementors. Not only is this fear overblown, but even the harms alleged are frequently ambiguous and provide benefits to some consumers.
Technology Platforms and Innovation
Much of the analysis of popular technology companies is predicated on traditional market definition analysis, which infers future substitution possibilities from existing or past market conditions. This leads to overly-narrow market definitions and erroneous market power determinations. Thus, Amazon, Facebook, and Google are assumed — erroneously — to be unassailable monopolies.
Data Competition and Privacy
Data is a valuable input for companies competing in the digital economy. It is not, however, a magic bullet or holy grail, as some commenters suggested. As with other assets, companies can use data in both pro-competitive and anti-competitive ways. “Big data” may be a new term, but it does not pose unique problems for competition policy.
Comments and Testimony of ICLE staff and affiliates:
Introduction: The Threat of Populist Antitrust
Comments of the International Center for Law & Economics:
The Current Landscape of Competition and Consumer Protection Law and Policy
Comments of the International Center for Law & Economics:
The Current Landscape of Competition and Consumer Protection Law and Policy (22 pages)
Comments of the International Center for Law & Economics:
Has the U.S. Economy Become More Concentrated and Less Competitive? (13 pages)
Hearing #1
Testimony of ICLE Affiliates:
Testimony of Joshua D. Wright, George Mason University School of Law; Wilson Sonsini Goodrich & Rosati; ICLE
Panel on Has the US Economy Become More Concentrated and Less Competitive: A Review of the Data
The Consumer Welfare Standard
Hearing #1
Comments of the International Center for Law & Economics:
Antitrust Principles and Evidence-Based Antitrust Under the Consumer Welfare Standard (26 pages)
Hearing #5
Comments of the International Center for Law & Economics::
Testimony of Geoffrey A. Manne, International Center for Law and Economics:
Panel on the Consumer Welfare Standard in Antitrust Law (Session 2)
“Big Data,” Privacy, and Competition in High-Tech Markets
Hearing #1
Comments of the International Center for Law & Economics:
Privacy, Antitrust, and the Economic Approach to the Regulation of Consumer Data (20 pages)
Hearing #6
Comments of the International Center for Law & Economics:
Understanding Competition in Markets Involving Data or Personal or Commercial Information (44 pages)
Intellectual Property
Hearing #4
Comments of ICLE Affiliate Joanna Shepherd, Emory University School of Law
Disrupting the Balance: The Conflict Between Hatch-Waxman and Inter Partes Review
Algorithms, Artificial Intelligence, and Predictive Analytics
Hearing #7
Testimony of ICLE Affiliate Salil Mehra, Temple University School of Law
Common Ownership
Hearing #8
Comments of ICLE Affiliates Thomas A. Lambert & Michael E. Sykuta:
Data Security
Hearing #9
Comments of the International Center for Law & Economics:
The FTC’s Flawed Data Security Enforcement Program and Some Suggestions for Reform (50 pages)
Testimony of Geoffrey A. Manne, International Center for Law & Economics:
Panel on FTC Data Security Enforcement
Competition and Consumer Protection Issues in Broadband Markets
Hearing #10
Comments of the International Center for Law & Economics:
International Issues
Hearing #11
Testimony of ICLE Affiliate Christopher Yoo, University of Pennsylvania
Panel on Implications of Different Legal Traditions and Regimes for International Cooperation
The FTC’s Approach to Consumer Privacy
Hearing #12
Comments of the International Center for Law & Economics:
The Error-Cost Framework
Hearing #14
Testimony of ICLE Affiliate Thomas A. Lambert, University of Missouri School of Law:
Panel on Frank Easterbrook’s The Limits of Antitrust
Comments of ICLE Affiliate Thomas A. Lambert, University of Missouri School of Law:
The Limits of Antitrust in the 21st Century
Consumer Protection Remedies
Hearing #14
Testimony of Justin “Gus” Hurwitz, University of Nebraska College of Law and Director of ICLE’s Law and Economics Programs:
Panel on Consumer Protection Remedies: Economic & Legal Considerations
Concluding Comments: The Weaknesses of Interventionist Claims about the Consumer Welfare Standard, Vertical Mergers, Vertical Discrimination, Technology Platforms & Innovation, and Data Competition and Privacy
Comments of the International Center for Law & Economics:
Summing Up the FTC Hearings: Advocates for Increased Antitrust Intervention Failed to Make Their Case (150 pages)