Simons, Delrahim Urge Caution With New Antitrust Laws

Congress should be cautious about creating new antitrust regulations, FTC Chairman Joe Simons and DOJ Antitrust Division Chief Makan Delrahim said Monday. “Some are proposing regulatory solutions designed to curb or change the way” tech companies compete, Simons told a virtual International Competition Network conference. “I would advise strong caution before adopting any type of a regulatory regime rather than relying on a competition regime.”

“We have to be careful to understand the effects that those new laws might have,” Delrahim said. Changing the law doesn’t always make it “easier” for enforcers, he added: The goal should be to sharpen tools and ensure enforcers have what they need to address the core issues of company conduct. Simons said the FTC could use more funding.

History shows regulatory regimes are subject to regulatory capture and political influence, resulting in artificial barriers to competition, Simons said: “The best way to keep companies in line is vigorous antitrust enforcement.”

Dominant tech companies have great responsibility, and they shouldn’t give preference to their own products and platforms, said European Commission Executive Vice-President Margrethe Vestager: “What the little guy may try to do, it has no market effect whatsoever. The minute you just breathe in that direction, it can change the market. It’s important to be aware of this because we also want competition in innovation.”

U.S. antitrust laws are designed for and have worked effectively in promoting competition for more than a century, Delrahim said: “When competition is at its strongest, good things follow for the consumer in the form of lower prices, higher quality and enhanced innovation and its related dimensions such as data and privacy protection.”

Delrahim noted his division’s recent restructuring (see 2008210040). DOJ added a section focused entirely on tech and new platforms. The shifting of responsibilities will let the department focus on conduct in digital and other industries, he added. Another office will focus on enforcing decrees with companies to ensure commitments are met, he noted.

DOJ and the FTC are moving in the same direction on technology, Simons said. He credited Justice for forming a compliance section focused on consent orders: “Having folks specialize in that is really important.”

The EU is more advanced on data security because of the general data protection regulation, Simons said. The FTC Act passed without any foresight for the modern digital world, he argued: The FTC relies on laws prohibiting deceptive acts when policing privacy. He encouraged Congress to develop privacy and data security laws.

Good competition policy includes taking interim measures when an investigation is ongoing or requiring remedies to restore competition in a market that’s already tipped, said Vestager. Everything shouldn’t be seen as a competition issue, she noted: Sometimes, it’s strictly about consumer protection.

“As these new technologies come to upend possibly the old business models, we want to be sure that we’re vigilant so that the incumbents do not snuff out the new technologies that will provide greater efficiencies,” Delrahim said.