The Blind Spots of Brightline Rules: The DMA and Anti-Steering
Two years ago, the European Union’s flagship Digital Markets Act (DMA) took effect. The DMA promised to make platform markets “fairer and more contestable” for the businesses that rely on them to reach consumers by imposing a set of brightline mandates on designated gatekeepers.
In the United States, advocates of DMA-style competition rulemaking include former Federal Trade Commission (FTC) Chair Lina Khan and Sen. Amy Klobuchar (D-Minn.), whose American Innovation and Choice Online Act (AICOA)—which Congress has not enacted—closely tracks the DMA’s approach. Supporters argue that brightline rules lower enforcement costs and provide greater certainty for regulators and firms than case-by-case antitrust litigation against large technology companies. U.S. antitrust law, by contrast, generally requires enforcers and private plaintiffs to prove that a defendant possesses and has abused market power and that the challenged conduct produces net anticompetitive effects. Brightline regimes such as the DMA aim to bypass these showings altogether.
The ongoing battles between mobile app developers and competition authorities over Apple’s so-called anti-steering policies—fought in U.S. courts and before European regulators—put that case for digital platform rulemaking under strain. These disputes suggest that rigid rules do not necessarily simplify enforcement or align with the interests of the very developers who have lobbied for them.
This article examines app-store policies that restrict developers’ ability to inform users about, or direct them to, alternative payment options outside an app store’s proprietary in-app payment system, such as transactions completed on a developer’s own website. Part II compares how those policies fare under the DMA’s brightline, ex ante prohibitions with their treatment under the more flexible, effects-based framework of U.S. federal and state antitrust law.