Cantwell: Expect Commerce Vote on Khan in a ‘Few Weeks’

The Senate Commerce Committee expects to vote on advancing Lina Khan’s nomination to the FTC in a “few weeks,” Chair Maria Cantwell, D-Wash., told us Wednesday after Khan’s confirmation hearing (see 2103290061). Republicans we interviewed remain neutral. And Sen. Marsha Blackburn, R-Tenn., had worries.

“I’ve got concerns about her lack of experience, going to such an important position. And we’ll see where it goes, but I do have concerns,” Blackburn said of the Columbia Law School scholar and former FTC and House Judiciary Committee aide (see 2103220056). “Nothing about her testimony today indicated anything that would give me concern,” Senate Commerce ranking member Roger Wicker, R-Miss., told us. “Obviously, we’ll look at all the information.”

“I had a good conversation with her in my office, and I was pleased with what she had to say in response to my question today,” Sen. Jerry Moran, R-Kan., told us. “So I’m not leaning [one way or another], still sorting it out.”

Sens. Ted Cruz, R-Texas, and Rick Scott, R-Fla., remain undecided. Cruz told us he expected to have to met with her Wednesday afternoon: “I’ll wait till I meet with her and make an assessment.” Cantwell and Sen. Brian Schatz, D-Hawaii, said they’re ready to support her confirmation. “We had a really robust conversation,” Schatz said. “She's formidable, and she’s going to be a great commissioner.”

Khan appeared with former Sen. Bill Nelson, D-Fla., President Joe Biden’s NASA administrator nominee, and Leslie Kiernan, nominated to be general counsel at the Commerce Department. Cantwell told us it will take a few weeks to work through questions for the record and responses and scheduling.

Wicker asked Khan about her widely read Amazon antitrust paper, noting that it included discussion about potentially applying common carrier regulations to Big Tech. He said Supreme Court Justice Clarence Thomas recently suggested that should be a consideration (see 2104090046). Khan responded that she read Thomas’ concurrence and said there are two potential pathways for addressing consolidation of the market: enforce competition laws or subject companies to new rules. Common carrier regulation is one potential tool, she said: Policymakers will need to pick one of those pathways to address competition issues.

Cantwell asked if the FTC should review the fairness of the compensation Facebook and Google offer journalism outlets. Everything needs to be on the table because local journalism is in “crisis,” said Khan. News publishers are increasingly dependent on gatekeepers, so algorithm changes can cause revenue to plummet, she added, voicing concern about arbitrary decisions. FTC and DOJ lawsuits filed last year against the two companies underscore these issues, she said.

Moran raised concern about social media companies not upholding promises to consumers, particularly on content moderation decisions. He has introduced legislation to strengthen FTC unfair and deceptive acts enforcement in this regard. Moran asked Khan how the agency can ensure companies are abiding by terms of service. She discussed information gaps between the agency and industry, which make it difficult for officials to fully understand the market. In general, the FTC’s information collection authorities, like its ability to pursue FTC Act Section 6(b) studies (see 2012300055), can be “useful,” she said.

The House Commerce Committee plans a virtual hearing on returning money to defrauded consumers and FTC Act Section 13(b) authority April 27 at 1 p.m. EDT. Rep. Tony Cardenas, D-Calif., introduced his related bill Tuesday, hours after the Senate Commerce Committee discussed the topic (see 2104190059).

Sen. Amy Klobuchar, D-Minn., asked about her legislation for giving news outlets power to better negotiate with Big Tech through antitrust exemptions (see 2103120066). Congress uses such exemptions when there are deep asymmetries of power within the market, said Khan, and the tech market fits that criteria. Klobuchar also asked Khan about the power Apple and Google have through their app stores. Having only two options for consumers allows the companies to set the terms, and "certain terms and conditions appear to lack any beneficial justifications,” said Khan. When asked by Sen. Richard Blumenthal, D-Conn., about the biggest challenge for the FTC in enforcing against Big Tech, Khan said agencies are a little slow to catch up with the business and other empirical realities of how markets work.