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Are they fair? Sens. Mike Lee, Amy Klobuchar to explore big tech acquisitions

Sen. Mike Lee, R-Utah
Sen. Mike Lee, R-Utah
Scott G Winterton, Deseret News

SALT LAKE CITY — Is current federal law and regulatory oversight sufficient to keep big U.S. tech companies — a handful of which enjoy unprecedented financial power — from simply buying up companies identified as potential future competitors?

That question will be at the heart of an upcoming Senate hearing announced Tuesday by Republican Utah Sen. Mike Lee and Sen. Amy Klobuchar, the Minnesota Democrat who is also in the midst of a race for her party’s 2020 presidential nomination.

Lee and Klobuchar co-chair the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, and the duo have now scheduled two hearings this month with big tech antitrust issues in their sights. The bipartisan interest in inquiries focused on big tech — and the question of how much power is too much — appears to be on the rise.

Lee said while not all tech acquisitions are of a predatory nature, more input is needed to assess what, if any, additional legislation may be needed to ensure fair competition in the tech sector.

“Acquisitions of nascent or potential competitors by dominant digital platforms can be pro-competitive, but they also run the risk of eliminating the very competition that may challenge the incumbent firm’s leading position in the future,” Lee said in a statement. “We are holding this hearing to gain a better understanding of the various concerns raised by these transactions and to examine how the antitrust agencies analyze such mergers.

“In addition to the hearing, the subcommittee also is interested in soliciting input from policy analysts, market participants and other stakeholders on whether legislative action relating to such mergers is needed to ensure digital markets remain competitive.”

Klobuchar cited an unchecked trend among tech goliaths in snapping up startups that have the earmarks of future adversaries, a practice she says has potential downstream harms for consumers in the areas of product choice, pricing and personal privacy.

“This is an important hearing,” Klobuchar said in a statement. “In recent years we have seen a record number of mergers that have raised serious competition issues. Big technology companies have become some of the most powerful organizations in the world. They face little competition and there are numerous examples of the companies purchasing startup competitors in various lines of business. These companies’ practices can limit options for consumers, distort prices and stifle innovation.

Klobuchar said the government has failed to adequately regulate or police such practices and she is a supporter of enhancing both legislative and enforcement responses to protect U.S. consumers.

“With virtually no meaningful pushback from our government, these companies have reshaped the meaning of American privacy, the purchasing of goods and services, and the workings of our elections and our democracy,” Klobuchar said. “To respond to these concerns I have continually advocated for 1) changes to our laws; 2) aggressive enforcement of the laws on the books; and 3) adequate funding for the (Federal Trade Commission) and (U.S. Department of Justice) antitrust division. I will be asking questions about the effects of tech company mergers on competition and steps to address these problems.”

A Lee spokesman said the hearing on tech acquisitions is scheduled for Sept. 24 but a final witness list has yet to be released. Just a week before, Lee and Klobuchar will have the opportunity to question FTC Chairman Joseph Simons and Makan Delrahim from the Department of Justice’s antitrust division on issues related to oversight and enforcement of antitrust laws as they relate to big U.S. tech interests.

The new hearing comes close behind reports, confirmed by Facebook in a July earnings report, that the FTC has already begun an antitrust investigation into the company. That inquiry appears to be focused on acquisitions potentially intended to defend Facebook’s dominant market position, including buying photo sharing app Instagram in 2012 and instant messaging platform WhatsApp in 2014. Both acquisitions have been cited by academics and industry-watchers as examples of blatantly anti-competitive strategies.

In July, University of Utah S.J. Quinney College of Law professor and antitrust expert Jorge Contreras told the Deseret News that he and other legal experts where taken aback by the lack of a federal response to Facebook’s $1 billion acquisition of Instagram. The move, he said, was seen by many as a case of Facebook simply buying up a potential competitor before it grew big enough to pose a business risk.

“I think the Facebook-Instagram merger, with almost no opposition from the government, really sent off alarm bells, at least among academics and observers,” Contreras said. “The collective response was, ‘What is going on here? We expected at least a good fight about this.’”

On Tuesday, an FTC spokeswoman said the agency does not “confirm the existence of ... or comment on investigations” in response to a Deseret News inquiry about the investigation focused on potential anticompetitive acquisitions by Facebook. But a New York Times story last month cited two people with “knowledge of the social network” confirming that the agency was looking into how Facebook targeted acquisitions after information uncovered in an unrelated investigation on privacy issues (which led to a $5 billion fine) “prompted concerns.”