Independent, But Together: How Antitrust and Regulation Can Work Synergistically To Benefit Consumers

By: Al Kramer (Public Knowledge)

Public Knowledge released my new paper, “A Lesson From the Landmark AT&T Breakup: Both a Sector-specific Regulator and Antitrust Enforcers Were Needed.” The paper traces how antitrust enforcers and a regulatory agency with jurisdiction over telecommunications, each working independently in pursuit of its own defined mission, produced a competitive telecommunications industry with the attendant benefits for competitors and consumers and society – lower priced and higher quality goods and services. A similar dual approach of a regulatory agency with jurisdiction over Big Tech and the vigorous application of  existing and enhanced antitrust laws aimed at the industry can do the same for Big Tech.

For the past several years, a number of macro-level public policy debates have been swirling around Big Tech. One debate has been about whether the antitrust laws, perhaps with some strengthening or new provisions specifically designed to reach Big Tech, are sufficient to address the dominance of companies such as Facebook (Meta), Google, Amazon, Apple, and some others. Indeed, whether Section 2 of the Sherman Act, antitrust’s main anti-monopolization law, can be effective for at least part of meeting this challenge is currently being tested in antitrust cases against Facebook (Meta) and Google.

Another issue concerns whether some platforms have particular economic and other characteristics that inherently lead to, or at least “tip” toward, dominance by a single or a very small number of firms with the resultant tendency toward practices that harm competition or lead to anti-consumer practices. If they do, it follows that these platforms need sector-specific competition laws or regulation to prevent the dominance from recurring rather than waiting for these characteristics to lead right back to the same dominance, with the attendant anti-competitive and anti-consumer consequences. 

There is also a question over who should regulate – whether the authority to regulate should go to an existing regulatory agency or a new agency with specific subject matter jurisdiction…

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