Get smart quick: How the new bipartisan antitrust bills in the House would help news outlets

A bipartisan group from the House Judiciary Antitrust Subcommittee recently introduced a sweeping package of legislation aimed at updating our antitrust laws to handle the rise of the tech giants. The bills come after an extensive investigation by the committee that began in 2019 and culminated in a major report released late last year. That investigation, and numerous other revelations over the last year, clearly show that news outlets never had a fair shot at competing in a marketplace so thoroughly dominated by big tech companies like Google.

The Chair and Ranking Member of the Antitrust Subcommittee, Reps. David Cicilline (D-RI) and Ken Buck (R-CO) had previously introduced legislation specifically focused on the journalism industry called the Journalism Competition and Preservation Act. These bills do not so directly relate to the journalism industry, but there are several elements of this legislative package that address specific harms to news outlets resulting from anti-competitive actions by Google. Here’s what you need to know about how these bills would impact the journalism industry.

American Innovation and Choice Online Act – This bill would prohibit actions by dominant tech platforms that advantage its own products, excludes or disadvantages its competitors, or discriminates among similar businesses. This is commonly referred to as prohibiting self-preferencing. If this were to become law, it would ban several practices by Google that have severely harmed the journalism industry. They are:

• Accelerated Mobile Pages: Google requires publishers to use its AMP, web pages which are stripped down of images (and ad space) in order to load faster on mobile devices, in order to rank highly on mobile search. And because Google dominates the search market, publishers have little choice but to use AMP. But news publishers earn less revenue from pages on AMP and Google gets access to data it otherwise wouldn’t. This practice would appear to be barred by the prohibition on advantaging its own products. For more on AMP, go here.
• Jedi Blue and Project Bernanke (we’ve broken this down before): Antitrust lawsuits against Google have produced revelations that the company has used its dominance of the digital ad infrastructure to hatch multiple schemes to rig ad prices and fix ad auction outcomes. While already likely illegal, these schemes would certainly fall under the prohibition on discriminating against similar business.
• Retiring 3^rd Party Cookies and requiring use of Privacy Sandbox: Google has announced plans to retire support for 3^rd party cookies on its market-leading Chrome browser. Google will still have the capabilities these cookies provide, but its competitors won’t. Retiring third party cookies in this manner excludes this valuable data from Google’s competitors and advantages its digital ad business and would appear to be barred by this legislation’s prohibition on excluding and disadvantaging competitors. Here’s a primer on digital advertising if you’re not caught up.

Platform Competition and Opportunity Act – This bill would stop firms buying up smaller competitors and rivals in order to gain a dominant position in a line of business or prevent any potential competitors from emerging. Google is now the dominant player at every level of the digital ad marketplace. It operates the largest exchange which runs the auctions. It operates the largest Supply Side Platform, which manages publishers’ ad space in the auctions. It operates the largest Demand Side Platform, which manages advertisers ad campaigns that bid on available ad space in the auctions. It is also a large buyer and seller of ad space itself. But Google didn’t get to this dominant position simply by developing better products at all of these layers. Rather it got there by gobbling up smaller competitors or rivals. This is precisely the practice that this bill would prohibit if it became law.

End Platform Monopolies Act – This bill prohibits the major tech platforms from engaging in business activities that create a conflict of interest. We would not tolerate any other marketplace in which one firm acted as the leading agent for both sides of the transaction, ran the exchange on which the transaction takes place, and is also a major player itself on both sides of the transaction. Google’s dominance of every layer of the digital ad marketplace is the very definition of the kind of conflict of interest that this bill is designed to prevent, and Google has proven they’re willing to take advantage of it.

Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act – This is a similar bill as one already introduced in the Senate and would require platforms are interoperable and establish data portability. Ensuring that online platforms are interoperable is very important for smaller news outlets that can’t draw on the scale of readership of the big national papers like the New York Times. Smaller publishers need to be able to partner with other technology and data providers in order to be able to compete in the digital marketplace. The trend toward ever growing walled gardens has been one of the reasons driving the crisis in local news. This bill could restore an avenue to competitiveness for regional, local, and hyper-local outlets that desperately need it.

Merger Filing Fee Modernization Act – This bill is similar to one already passed in the Senate and would increase the fees associated with mergers and acquisitions to provide more resources for the enforcement agencies with primary antitrust responsibilities. The Federal Trade Commission and the Department of Justice’s Antitrust Division have been starved of resources even as the scale of their oversight responsibilities has dramatically increased. This legislation would provide a stable source of revenue to increase capacity at these agencies so they would be better equipped to assess acquisitions by the tech giants (and other firms) like those that enabled Google to completely dominate the digital ad marketplace.