[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3826 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 3826
To promote competition and economic opportunity in digital markets by
establishing that certain acquisitions by dominant online platforms are
unlawful.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 11, 2021
Mr. Jeffries (for himself, Mr. Buck, Mr. Cicilline, Mr. Nadler, and Mr.
Gooden of Texas) introduced the following bill; which was referred to
the Committee on the Judiciary
_______________________________________________________________________
A BILL
To promote competition and economic opportunity in digital markets by
establishing that certain acquisitions by dominant online platforms are
unlawful.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Platform Competition and Opportunity
Act of 2021''.
SEC. 2. UNLAWFUL ACQUISITIONS.
(a) Violation.--It shall be unlawful for a covered platform
operator to acquire directly or indirectly--
(1) the whole or any part of the stock or other share
capital of another person engaged in commerce or in any
activity or affecting commerce; or
(2) the whole or any part of the assets of another person
engaged in commerce or in any activity affecting commerce.
(b) Exclusion.--An acquisition shall not be unlawful under
subsection (a) if the acquiring covered platform operator demonstrates
by clear and convincing evidence that--
(1) the acquisition is a transaction that is described in
section 7A(c) of the Clayton Act; or
(2) the acquired assets or the issuer of the acquired stock
do not--
(A) compete with the covered platform or with the
covered platform operator for the sale or provision of
any product or service;
(B) constitute nascent or potential competition to
the covered platform or the covered platform operator
for the sale or provision of any product or service;
(C) enhance or increase the covered platform's or
the covered platform operator's market position with
respect to the sale or provision of any product or
service offered on or directly related to the covered
platform; or
(D) enhance or increase the covered platform's or
covered platform operator's ability to maintain its
market position with respect to the sale or provision
of any product or service offered on or directly
related to the covered platform.
(c) User Attention.--For purposes of this Act, competition, nascent
competition, or potential competition for ``the sale or provision of
any product or service'' includes competition for a user's attention.
(d) Role of Data.--For purposes of this Act, an acquisition that
results in access to additional data may, without more, enhance,
increase, or maintain a covered platform's market position.
SEC. 3. DEFINITIONS.
(a) Antitrust Laws.--The term ``antitrust laws'' has the meaning
given the term in subsection (a) of section 1 of the Clayton Act (15
U.S.C. 12).
(b) Commission.--The term ``Commission'' means the Federal Trade
Commission.
(c) Control.--The term ``control'' with respect to a person means--
(1) holding 25 percent or more of the stock of the person;
(2) having the right to 25 percent or more of the profits
of the person;
(3) having the right to 25 percent or more of the assets of
the person, in the event of the person's dissolution;
(4) if the person is a corporation, having the power to
designate 25 percent or more of the directors of the person;
(5) if the person is a trust, having the power to designate
25 percent or more of the trustees; or
(6) otherwise exercises substantial control over the
person.
(d) Covered Platform.--The term ``covered platform'' means an
online platform--
(1) that has been designated as a ``covered platform''
under section 4(a); or
(2) that--
(A) at the time of the Commission's or the
Department of Justice's designation under section 2(d),
or any of the twelve months preceding that time, or in
any of the 12 months preceding the filing of a
complaint for an alleged violation of this Act--
(i) has at least 50,000,000 United States-
based monthly active users on the online
platform; or
(ii) has at least 100,000 United States-
based monthly active business users on the
platform;
(B) is owned or controlled by a person with net
annual sales, or a market capitalization greater than
$600,000,000,000, adjusted for inflation on the basis
of the Consumer Price Index, at the time of the
Commission's or the Department of Justice's designation
under section 4(a) or any of the two years preceding
that time, or at any time in the 2 years preceding the
filing of a complaint for an alleged violation of this
Act; and
(C) is a critical trading partner for the sale or
provision of any product or service offered on or
directly related to the online platform.
(e) Covered Platform Operator.--The term ``covered platform
operator'' means a person that, directly or indirectly, owns or
controls a covered platform.
(f) Critical Trading Partner.--The term ``critical trading
partner'' means an entity that has the ability to restrict or impede--
(1) the access of a business user to its users or
customers; or
(2) the access of a business user to a tool or service that
needs to effectively serve its users or customers.
(g) Business User.--The term ``business user'' means a person that
utilizes or plans to utilize the covered platform for the sale or
provision of products or services.
(h) Online Platform.--The term ``online platform'' means a website,
online or mobile application operating system, digital assistant, or
online service that--
(1) enables a user to generate content that can be viewed
by other users on the platform or to interact with other
content on the platform;
(2) facilitates the offering, sale, purchase, payment, or
shipping of goods or services, including software applications,
between and among consumers or businesses not controlled by the
platform; or
(3) enables user searches or queries that access or display
a large volume of information.
(i) Person.--The term ``person'' has the meaning given the term in
subsection (a) of section 1 of the Clayton Act (15 U.S.C. 12).
SEC. 4. IMPLEMENTATION.
(a) Covered Platform Designation.--
(1) The Federal Trade Commission or Department of Justice
shall designate whether an entity is a covered platform for the
purpose of implementing and enforcing this Act. Such
designation shall--
(A) be based on a finding that the criteria set
forth in section 3(d)(2)(A)-(C) are met;
(B) be issued in writing and published in the
Federal Register; and
(C) will apply for 10 years from its issuance
regardless of whether there is a change in control or
ownership over the covered platform unless the
Commission or the Department of Justice removes the
designation pursuant to subsection (b).
(b) Removal of Covered Platform Designation.--The Commission and
the Department of Justice shall--
(1) consider whether its designation of a covered platform
pursuant to subsection (a) should be removed prior to the
expiration of the 10-year period if the covered platform
operator files a request with the Commission or the Department
of Justice, which shows that the online platform is no longer a
critical trading partner;
(2) determine whether to grant a request submitted under
paragraph 1 not later than 120 days after the date of the
filing of such request; and
(3) obtain the concurrence of the Commission or the
Department of Justice, as appropriate, before granting a
request submitted under paragraph (1).
SEC. 5. ENFORCEMENT.
(a) Enforcement Proceeding.--The Commission, Department of Justice,
and any attorney general of a State subject to the requirements in
subsection (d) shall enforce this Act in the same manner, by the same
means, and with the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act (15
U.S.C. 41 et seq.) or the Clayton Act (15 U.S.C. 12 et seq.), as
appropriate, were incorporated into and made a part of this Act.
(b) Unfair Methods of Competition.--A violation of this Act shall
also constitute an unfair method of competition under section 5 of the
Federal Trade Commission Act (15 U.S.C. 5).
(c) Commission Independent Litigation Authority.--If the Commission
has reason to believe that a covered platform violated this Act, the
Commission may commence a civil action, in its own name by any of its
attorneys designated by it for such purpose, to recover a civil penalty
and seek other appropriate relief in a district court of the United
States against the covered platform operator.
(d) Parens Patriae.--Any attorney general of a State may bring a
civil action in the name of such State for a violation of this Act as
parens patriae on behalf of natural persons residing in such State, in
any district court of the United States having jurisdiction of the
defendant, and may secure any form of relief provided for in this
section.
SEC. 6. ENFORCEMENT GUIDELINES.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Commission and the Assistant Attorney General of the
Antitrust Division shall jointly issue guidelines outlining policies
and practices, relating to agency enforcement of this Act, with the
goal of promoting transparency and deterring violations.
(b) Updates.--The Commission and the Assistant Attorney General of
the Antitrust Division shall update the joint guidelines issued under
subsection (a), as needed to reflect current agency policies and
practices, but not less frequently than once every 4 years beginning on
the date of enactment of this Act.
(c) Operation.--The Joint Guidelines issued under this section do
not confer any rights upon any person, State, or locality, nor shall
operate to bind the Commission, Department of Justice, or any person,
State, or locality to the approach recommended in such Guidelines.
SEC. 7. SUITS BY PERSONS INJURED.
(a) In General.--Except as provided in subsection (b), any person
who shall be injured in his business or property by reason of anything
forbidden in this Act sue therefor in any district court of the United
States in the district in which the defendant resides or is found or
has an agent, without respect to the amount in controversy, and shall
recover threefold the damages by him sustained, and the cost of suit,
including a reasonable attorney's fee. The court may award under this
section, pursuant to a motion by such person promptly made, simple
interest on actual damages for the period beginning on the date of
service of such person's pleading setting forth a claim under the
antitrust laws and ending on the date of judgment, or for any shorter
period therein, if the court finds that the award of such interest for
such period is just in the circumstances. In determining whether an
award of interest under this section for any period is just in the
circumstances, the court shall consider only--
(1) whether such person or the opposing party, or either
party's representative, made motions or asserted claims or
defenses so lacking in merit as to show that such party or
representative acted intentionally for delay, or otherwise
acted in bad faith;
(2) whether, in the course of the action involved, such
person or the opposing party, or either party's representative,
violated any applicable rule, statute, or court order providing
for sanctions for dilatory behavior or otherwise providing for
expeditious proceedings; and
(3) whether such person or the opposing party, or either
party's representative, engaged in conduct primarily for the
purpose of delaying the litigation or increasing the cost
thereof.
(b) Amount of Damages Payable to Foreign States and
Instrumentalities of Foreign States.--
(1) Except as provided in paragraph (2), any person who is
a foreign state may not recover under subsection (a) an amount
in excess of the actual damages sustained by it and the cost of
suit, including a reasonable attorney's fee.
(2) Paragraph (1) shall not apply to a foreign state if--
(A) such foreign state would be denied, under
section 1605(a)(2) of title 28, United States Code,
immunity in a case in which the action is based upon a
commercial activity, or an act, that is the subject
matter of its claim under this section;
(B) such foreign state waives all defenses based
upon or arising out of its status as a foreign state,
to any claims brought against it in the same action;
(C) such foreign state engages primarily in
commercial activities; and
(D) such foreign state does not function, with
respect to the commercial activity, or the act, that is
the subject matter of its claim under this section as a
procurement entity for itself or for another foreign
state.
SEC. 8. JUDICIAL REVIEW.
(a) In General.--Any party that is subject to a covered platform
designation pursuant to section 4(a) of this Act, a decision in
response to a request to remove a covered platform designation pursuant
to section 4(b), a final order issued in any district court, or a final
order of the Commission issued in an administrative adjudicative
proceeding may within 30 days of the issuance of such designation,
decision, or order, petition for review of such designation or order in
the United States Court of Appeals for the District of Columbia
Circuit.
(b) Treatment of Findings.--In a proceeding for judicial review of
a covered platform designation pursuant to section 4(a) of this Act or
a final order of the Commission, the findings of the Commission or the
Department of Justice as to the facts, if supported by evidence, shall
be conclusive.
(c) Injunctive Relief.--Any person, firm, corporation, or
association shall be entitled to sue for and have injunctive relief, in
any court of the United States having jurisdiction over the parties,
against threatened loss or damage by a violation of this Act, when and
under the same conditions and principles as injunctive relief against
threatened conduct that will cause loss or damage is granted by courts
of equity, under the rules governing such proceedings, and upon the
execution of proper bond against damages for an injunction
improvidently granted and a showing that the danger of irreparable loss
or damage is immediate, a preliminary injunction may issue: Provided,
That nothing herein contained shall be construed to entitle any person,
firm, corporation, or association, except the United States, to bring
suit for injunctive relief against any common carrier subject to the
jurisdiction of the Surface Transportation Board under subtitle IV of
title 49. In any action under this section in which the plaintiff
substantially prevails, the court shall award the cost of suit,
including a reasonable attorney's fee, to such plaintiff.
SEC. 9. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to limit any authority of
the Attorney General or the Federal Trade Commission under the
antitrust laws, the Federal Trade Commission Act (15 U.S.C. 45), or any
other provision of law or to limit the application of any law.
SEC. 10. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act
and of the amendments made by this Act, and the application of the
remaining provisions of this Act and amendments to any person or
circumstance shall not be affected.
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