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Congress must call Amazon’s bluff on antitrust

Time is right, and fleeting, to pass bipartisan legislation

Sen. Amy Klobuchar is among the sponsors of bipartisan antitrust legislation.
Sen. Amy Klobuchar is among the sponsors of bipartisan antitrust legislation. (Tom Williams/CQ Roll Call file photo)

An army of Big Tech lobbyists has reportedly descended upon Capitol Hill to try to convince lawmakers that a suite of legislation designed to plug gaps in antitrust law would be a death knell for their platforms. But this is just the latest scare tactic from companies like Amazon and their minions. As Congress evaluates the bills currently on the table, it must call Big Tech’s bluff on these claims and make beefing up our competition policies a top priority for 2022.

Amazon, alongside the trade groups it supports, has been shouting from the rooftops that bipartisan antitrust legislation would force it to shut down some of its services — everything from Prime’s free shipping and orders from Alexa. If you listened to what Big Tech was saying, you would assume that these bills would mean the end of everyday life as we know it.

It doesn’t take much to see through such transparently hollow claims. For starters, Amazon and other Big Tech antitrust opponents can’t even get their own stories straight about what the legislative packages would actually do.

For instance, the Chamber of Progress declared that S 2992, or the “nondiscrimination” legislation, would “ban Amazon Prime.” But Amazon’s chief lobbyist had a slightly different take, stating that while the bill would not “ban” Prime, it may prove to be crippling. And back in October, when Sen. Amy Klobuchar, D-Minn., introduced the measure, opponents said the biggest blow would actually be to Amazon Basics, the company’s private-label brand.

At the same time, it also isn’t far off to say that Big Tech is portraying the specter of a more muscular competition policy as a matter of life and death. The Washington Post recently reported how NetChoice, which counts Amazon and Meta as some of its members, is flooding social media with sensationalistic ads claiming that the suite of bills from the Judiciary Antitrust Subcommittee would prevent Alexa users from asking their household device, “How do I perform CPR?”

Let’s be clear: Many of Big Tech’s disinformation tactics have little basis in fact. While Amazon would like lawmakers to believe that the “nondiscrimination” legislation, which bars dominant platforms from preferencing their own wares, would put sellers out on the street and make it harder for Americans to access digital services, this is not the case. The bill would allow platforms to own some of the content coursing over their pipes; they just cannot give their own content affiliates preferential treatment in search results.

While I have stated previously that the proposed legislative fixes are not perfect, they are clearly a step in the right direction. If the nondiscrimination bill is passed, Amazon would no longer be able to showcase its private-label products at the top of search results and abuse its Buy Box status to benefit merchants that purchase other Amazon services. If the separate interoperability bill were to become law, Meta, another one of the usual suspects, would finally be required to make its Facebook and Instagram “cross-posting” videos or texts available to rival social media businesses.

It is hard to say which one of these bills would have a larger impact on Big Tech platforms. Personally, I believe the nondiscrimination measure being co-sponsored by Klobuchar and Sen. Charles E. Grassley, R-Iowa, and by Reps. David Cicilline, D-R.I., and Lance Gooden, R-Texas, is the most critical tool for restoring balance at the edges of the platforms, allowing independent merchants and developers a fair shot at competing. And it now has a chance at becoming law, with the Senate bill advancing out of the Senate Judiciary Committee just last week.

In the event that so-called “behavioral” remedies fail to rein in the worst abuses, “structural” remedies, such as those embodied in legislation introduced by Rep. Pramila Jayapal, D-Wash., would make it unlawful for a dominant platform to simultaneously own another line of business when that dual ownership creates a conflict of interest. Even if Amazon were forced to spin off, say, its AWS division, it’s hard to believe doing so would bring these massive corporations to their knees — despite their excessive fearmongering.

Given the gatekeeper status that Amazon and other Big Tech companies have obtained, it is critical that lawmakers move swiftly. Time is of the essence, as the looming midterms could threaten to set back much of the progress Congress has made. Leaders must do everything in their power to ensure that these bills advance and, as necessary, set Big Tech’s record straight.

The consequences of letting these firms grow unchecked should be a serious cause for concern for small businesses and consumers alike. Congress must call Big Tech’s bluff and make 2022 the year it prioritizes sweeping antitrust legislation. The clock is ticking.

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.

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