Even as delivery services work to ship all of those last-minute Christmas presents that consumers bought this season from digital platforms and other e-commerce sites, the U.S. House and Senate are contemplating Grinch-like legislation that looks to stop or limit how Big Tech companies can “self-preference” or “discriminate” on their platforms.

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ICLE Director of Competition Policy Sam Bowman joined The CapX Podcast for a discussion of the biggest stories of 2021. The full episode is embedded below.

The COVID-19 pandemic hit state budgets particularly hard in 2020, with a $24.11 billion drop in tax revenue collected from 2019’s levels. But analysis of National Association of Insurance Commissioners (NAIC) data demonstrates that insurance regulation remained a profitable revenue source for the states, generating $3.29 billion in budgetary surpluses across the 50 states and the District of Columbia, up from $2.94 billion in 2019.

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Section 230 of the Communications Decency Act continues to play a surprisingly large role in our political discourse, given its status as the last remaining vestige of a quarter-century-old law that was largely struck down by the courts long ago. The immunity shield the law grants to online platforms has been implicated in issues as broad-ranging as Twitter’s decision to ban former President Trump to whether Instagram exacerbates eating disorders among teens.

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Antitrust policymakers around the world have taken a page out of the Silicon Valley playbook and decided to “move fast and break things.” While the slogan is certainly catchy, applying it to the policymaking world is unfortunate and, ultimately, threatens to harm consumers.

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The Federal Trade Commission (FTC) appears committed—at least, for the moment—to a path of regulatory overreach. The commission’s Dec. 10 Statement of Regulatory Priorities (SRP) offers, in addition to a periodic review of existing rules and the status of proposed rules in the pipeline, a sneak preview of new “unfair methods of competition” (UMC) and “unfair or deceptive acts or practices” (UDAP) rulemakings that the body will consider developing next year.

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Background…

Since taking office, the Biden administration has moved aggressively to use enforcement actions and rulemakings—many of them outlined in the administration’s July 2021 executive order—ostensibly as a means to promote market competition. Among the targets of this approach has been the freight-rail sector. The administration advocates for mandated reciprocal switching, a form of compelled network interoperability, on grounds that it would improve the rail industry’s competitive environment.

The Biden EO called on the Surface Transportation Board (STB) to “strengthen regulations pertaining to reciprocal switching agreements,” which the board is expected to do in early 2022. The regulations would be based on a six-year-old notice of proposed rulemaking (NPRM), which was, in turn, based on far older data.

But…

Concerns about competition in the freight-rail industry, and particularly about consolidation among Class I railroads, have been both overblown and misdirected, driving officials to seek counterproductive regulatory remedies. A reciprocal-switching mandate would render rail networks both less efficient and less resilient, as it would undermine firms’ ability to schedule their operations precisely. 

Such a mandate would be particularly counterproductive in the midst of the ongoing supply-chain crisis. Over the longer term, a switching mandate would undermine the very incentives that have yielded enormous private investment in the development and ongoing maintenance of rail infrastructure.

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The Autorità Garante della Concorenza e del Mercato (AGCM), Italy’s competition and consumer-protection watchdog, on Nov. 25 handed down fines against Google and Apple of €10 million each—the maximum penalty contemplated by the law—for alleged unfair commercial practices. Ultimately, the two decisions stand as textbook examples of why regulators should, wherever possible, strongly defer to consumer preferences, rather than substitute their own.

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The Federal Trade Commission (FTC) on Dec. 2 filed an administrative complaint to block the vertical merger between Nvidia Corp., a graphics chip supplier, and Arm Ltd., a computing-processor designer. The press release accompanying the complaint stresses the allegation that “the combined firm would have the means and incentive to stifle innovative next-generation technologies, including those used to run datacenters and driver-assistance systems in cars.” According to the FTC…

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