The Ohio State Senate Judiciary Committee held two antitrust hearings last month, on October 17 and October 28, to discuss updating the state’s antitrust law. Existing federal and state antitrust laws consider high consumer prices as the primary indicator of anticompetitive conduct. The updates would reflect the current business climate in which prices for services and products are kept low (even free) in exchange for vast troves of consumer data. This would allow regulators to consider non-price factors such as control of data in antitrust investigations.
The hearings, led by Chairman John Eklund (R., Chardon), featured prominent antitrust advocates and experts. Barry Lynn of Open Markets Institute, Caitlin Johnson of Policy Matters Ohio, David Chavern of News Media Alliance, and Professor Felix Chang of the Corporate Law Center at the University of Cincinnati were among those who testified.
Lynn, who will be participating in ABA’s upcoming Antitrust Symposium, recalled the sentiments of Ohio’s own Senator John Sherman, for whom the Sherman Antitrust Act of 1890 is named. Lynn warned that the threat America faces today is conceivably greater than it was during Sherman’s time.
“Today, however, although Google, Facebook, and Amazon have each monopolized the provision of multiple essential services, neither federal nor antimonopoly enforcers treat them as common carriers. As a result, these three corporations enjoy a de facto license to discriminate in how they treat each individual seller and supplier, and how they treat each individual buyer,” Lynn noted. Common carriers traditionally transport goods or offer services for other companies at published and nondiscriminatory rates (i.e. the same rate for all). Designating Big Tech companies as common carriers would end the tech industry’s current self-regulation and forbid these giants from prioritizing certain companies and charging companies different rates.
Lynn went on to say, “[Google, Facebook, and Amazon] have built their business models largely on this license, and have used it to establish themselves as the de facto regulators or an immense and growing swath of the political economy of the United States and of much of the world.” In essence, these three companies have filled the void left by antitrust regulators.
In his testimony on behalf of News Media Alliance, Chavern urged state legislatures to act quickly in order to save news institutions from monopolization and anticompetitive conduct. “the concentration among digital platforms…means that a small cadre of giants now exercise an unprecedented level of control over web traffic and control which news organizations do and do not get traffic. The same giants control the digital advertising technologies that news organizations use to monetize digital traffic.”
Chavern added, “Without further action from Congress and/or the states, we face the real possibility that news organizations will be forced to rely on private charity to stay afloat. If that happens, it could [be] disastrous for the independence of the news media and the public’s faith in it.”
While any changes to Ohio’s antitrust law must not violate current federal antitrust legislation, information gathered from Ohio’s hearings may be used in a national investigation — possibly leading to updates in federal law.