U.S. Senate Testimony for Hearing on 'Reining in Dominant Digital Platforms : Restoring Competition to Our Digital Markets'

Congress ought not enact the American Innovation and Choice Online Act, nor the Open App Markets Act in its current form. Instead, Congress should support antitrust enforcement and consider platform rules that would protect consumers from anticompetitive practices, while allowing desirable conduct.In particular, the current draft of AICOA would deter many desirable practices, including product improvements and conduct for the protection of users. Qualifying provisions (including a "harm to competition" test and the availability of affirmative defenses) appear too weak and narrow to resolve these concerns. In addition, the breadth and vagueness of AICOA's other provisions seem likely to result in an avalanche of litigation and confusion.The current draft of OAMA represents a more promising basis for legislation. Some of its provisions -- including a ban on app price MFN for platforms with market power, and certain transparency requirements -- could benefit consumers. But OAMA's other provisions raise serious concerns. In particular, forcing third-party app stores into digital ecosystems seems likely to result in significant consumer harm.Congress has many options for promoting competition and protecting consumers. Instead of enacting AICOA and OAMA, Congress could fully fund federal and state antitrust enforcement, modernize antitrust doctrine, and consider targeted platform regulations that would prohibit practices by businesses with significant market power that would harm competition and consumers