[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5017 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 5017
To promote competition and reduce gatekeeper power in the app economy,
increase choice, improve quality, and reduce costs for consumers.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 13, 2021
Mr. Johnson of Georgia (for himself, Mr. Buck, and Mr. Cicilline)
introduced the following bill; which was referred to the Committee on
Energy and Commerce
_______________________________________________________________________
A BILL
To promote competition and reduce gatekeeper power in the app economy,
increase choice, improve quality, and reduce costs for consumers.
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 ``Open App Markets Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) App.--The term ``App'' means a software application or
electronic service that may be run or directed by a user on a
computer, a mobile device, or any other general purpose
computing device.
(2) App store.--The term ``App Store'' means a publicly
available website, software application, or other electronic
service that distributes Apps from third-party developers to
users of a computer, a mobile device, or any other general
purpose computing device.
(3) Covered company.--The term ``Covered Company'' means
any person that owns or controls an App Store for which users
in the United States exceed 50,000,000.
(4) Developer.--The term ``developer'' means a person that
owns or controls an App or an App Store.
(5) In-app payment system.--The term ``In-App Payment
System'' means an application, service, or user interface to
process the payments from users of an App.
(6) Non-public business information.--The term ``non-public
business information'' means non-public data that is--
(A) derived from a developer or an App or App Store
owned or controlled by a developer, including
interactions between users and the App or App Store of
the developer; and
(B) collected by a Covered Company in the course of
operating an App Store or providing an operating
system.
SEC. 3. PROTECTING A COMPETITIVE APP MARKET.
(a) Exclusivity and Tying.--A Covered Company shall not--
(1) require developers to use an In-App Payment System
owned or controlled by the Covered Company or any of its
business partners as a condition of being distributed on an App
Store or accessible on an operating system;
(2) require as a term of distribution on an App Store that
pricing terms or conditions of sale be equal to or more
favorable on its App Store than the terms or conditions under
another App Store; or
(3) take punitive action or otherwise impose less favorable
terms and conditions against a developer for using or offering
different pricing terms or conditions of sale through another
In-App Payment System or on another App Store.
(b) Interference With Legitimate Business Communications.--A
Covered Company shall not impose restrictions on communications of
developers with the users of the App through an App or direct outreach
to a user concerning legitimate business offers, such as pricing terms
and product or service offerings.
(c) Non-Public Business Information.--A Covered Company shall not
use non-public business information derived from a third-party App for
the purpose of competing with that App.
(d) Interoperability.--A Covered Company that controls the
operating system or operating system configuration on which its App
Store operates shall allow and provide the readily accessible means for
users of that operating system to--
(1) choose third-party Apps or App Stores as defaults for
categories appropriate to the App or App Store;
(2) install third-party Apps or App Stores through means
other than its App Store; and
(3) hide or delete Apps or App Stores provided or
preinstalled by the App Store owner or any of its business
partners.
(e) Self-Preferencing in Search.--
(1) In general.--A Covered Company shall not provide
unequal treatment of Apps in an App Store through unreasonably
preferencing or ranking the Apps of the Covered Company or any
of its business partners over those of other Apps.
(2) Considerations.--Unreasonably preferencing--
(A) includes applying ranking schemes or algorithms
that prioritize Apps based on a criterion of ownership
interest by the Covered Company or its business
partners; and
(B) does not include clearly disclosed advertising.
(f) Open App Development.--Access to operating system interfaces,
development information, and hardware and software features shall be
provided to developers on a timely basis and on terms that are
equivalent or functionally equivalent to the terms for access by
similar Apps or functions provided by the Covered Company or to its
business partners.
SEC. 4. PROTECTING THE SECURITY AND PRIVACY OF USERS.
(a) In General.--Subject to section (b), a Covered Company shall
not be in violation of a subsection of section 3 for an action that
is--
(1) necessary to achieve user privacy, security, or digital
safety;
(2) taken to prevent spam or fraud; or
(3) taken to prevent a violation of, or comply with,
Federal or State law.
(b) Requirements.--Section (a) shall only apply if the Covered
Company establishes by clear and convincing evidence that the action
described is--
(1) applied on a demonstrably consistent basis to Apps of
the Covered Company or its business partners and to other Apps;
(2) not used as a pretext to exclude, or impose unnecessary
or discriminatory terms on, third-party Apps, In-App Payment
Systems, or App Stores; and
(3) narrowly tailored and could not be achieved through a
less discriminatory and technically possible means.
SEC. 5. ENFORCEMENT.
(a) Enforcement.--
(1) In general.--The Federal Trade Commission, the Attorney
General, and any attorney general of a State subject to the
requirements in paragraph (4) 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.
(2) 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).
(3) Federal trade commission independent litigation
authority.--If the Federal Trade Commission has reason to
believe that a Covered Company violated this Act, the Federal
Trade 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.
(4) 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.
(b) Suits by Developers Injured.--
(1) In general.--Any developer who shall be injured by
reason of anything forbidden in this Act may 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 subsection, pursuant to a motion by such developer
promptly made, simple interest on actual damages for the period
beginning on the date of service of such developer's pleading
setting forth a claim under this Act 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 subsection for any period is just in the
circumstances, the court shall consider only--
(A) whether such developer 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;
(B) whether, in the course of the action involved,
such developer 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
(C) whether such developer 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.
(2) Injunctive relief.--Any developer 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. In any action under this paragraph in
which the plaintiff substantially prevails, the court shall
award the cost of suit, including a reasonable attorney's fee,
to such plaintiff.
SEC. 6. RULE 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 (as defined in the first section of the Clayton Act (15
U.S.C. 12), the Federal Trade Commission Act (15 U.S.C. 41 et seq.), or
any other provision of law or to limit the application of any law.
SEC. 7. SEVERABILITY.
If any provision of this Act, or the application of such a
provision to any person or circumstance, is held to be
unconstitutional, the remaining provisions of this Act, and the
application of the provision held to be unconstitutional to any other
person or circumstance, shall not be affected thereby.
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