The Most Interesting Thing Happening In Competition Policy

The U.S. Department of Justice is set to announce its long-awaiting antitrust case against Google, and the House Antitrust Subcommittee is poised to reveal its proposals to break up some tech companies.  But new reports from the Shorenstein Center and the Center on Equitable Outcomes point to a much more promising approach to reining in the power of big tech companies and creating genuine consumer alternatives. A supervisory agency tasked with using regulatory tools like data portability, data sharing and interoperability to promote competitive alternatives in these sectors might be up to the job. 

The DOJ case would be standard antitrust fare, alleging that Google has used its monopoly in general search to harm companies seeking to compete with them in the adjacent market for vertical search.  Even if found guilty, the remedy for this would allow the harmful market structure allowing Google’s dominance in general search to persist.  The same is true of proposals to separate platforms and commerce: the dominant platform would continue as a monopolist.

This is consistent with antitrust doctrine as currently understood and practiced according to which monopolies are not the problem.  The key objective of the current antitrust approach is to stop companies from using unfair means to obtain or maintain a monopoly.  

But no matter how specific the remedies, enduring monopolies find other ways to exercise their monopoly power to harm consumers and fledgling rivals.  The point of competition policy must be to promote competitive alternatives, not to constrain the conduct of companies with durable monopoly power.   

Several years ago, long-time antitrust practitioner and government official Phil Verveer warned against dealing with the problems of tech by bringing another big antitrust case.  Over the summer, he, former Federal Communications Commissioner Tom Wheeler, and consumer advocate and former DOJ official Gene Kimmelman published a