U.S. Antitrust Enforcers Signal Discord Over Probes of Big Tech -- 2nd Update

Date : 09/16/2019 @ 9:50PM
Source : Dow Jones News
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U.S. Antitrust Enforcers Signal Discord Over Probes of Big Tech -- 2nd Update

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By John D. McKinnon and Brent Kendall 

WASHINGTON -- Turf battles between the federal government's two antitrust enforcers are revving up as both assert authority to investigate whether big technology companies are engaging in anticompetitive behavior.

One flashpoint is the authority to investigate Facebook Inc.

The latest evidence of friction came in a letter late last week from the Federal Trade Commission to the Justice Department's antitrust division, in which the FTC complained about the department's behavior and raised concerns about recent interactions between the two agencies, according to people familiar with the matter.

The previously undisclosed letter, from FTC Chairman Joe Simons, raises the prospect that the longstanding power-sharing agreement between the two agencies is fraying. It is also raising concerns that the tension could eventually hamstring several current antitrust probes of big tech companies.

An FTC spokeswoman declined to comment. The Justice Department didn't respond to a request for comment.

The chairman of the Senate subcommittee on antitrust matters, Republican Mike Lee of Utah, said he plans to ask about the letter and the tensions it reflects at a hearing Tuesday. Both Mr. Simons and DOJ antitrust chief Makan Delrahim are expected to testify.

"Sen. Lee is aware of the letter and he intends to inquire at tomorrow's oversight hearing about whether the clearance process between the agencies is working and, if not, whether the FTC and DOJ are engaging in duplicative investigations," a Lee spokesman said on Monday. That clearance process, a longstanding arrangement between the two agencies, helps determine which of them investigates particular areas.

Mr. Lee has raised concerns about clashes between the two agencies on several recent occasions -- for example, when the Justice Department took the unusual step of undercutting the FTC's antitrust lawsuit against chip maker Qualcomm Inc. earlier this year. He has even suggested that having two federal enforcement agencies could be contributing to the problems.

"This kind of dysfunction and confusion illustrates why having two agencies at loggerheads does not make for effective antitrust enforcement," Mr. Lee said in August.

The FTC and the Justice Department share antitrust-enforcement authority in the U.S. While they have at times been rivals and engaged in turf battles, employees in both agencies acknowledge that their interactions lately have become abnormally strained.

Tech issues are a major contributing factor. Both the FTC and DOJ are under considerable pressure to investigate -- and potentially challenge -- a range of actions by a handful of companies that dominate online search, retail and social media.

One point of contention now between the agencies is whether the Justice Department will open its own antitrust investigation of Facebook, according to people familiar with the matter.

Messrs. Delrahim and Simons earlier this year negotiated arrangements that cleared the Justice Department to investigate Alphabet Inc.'s Google for possible monopolistic tactics and also gave the department jurisdiction over Apple Inc. for similar issues. The FTC secured for itself the right to explore monopolization questions involving Facebook and Amazon.com Inc.

But the Justice Department took things a step further in July, announcing a broad review of whether dominant online platforms in general are unlawfully stifling competition. That raised the rare possibility that both agencies might probe the same company, Facebook, at the same time.

The FTC's Facebook probe is investigating, among other things, whether the social-media giant pursued a pattern of acquisitions designed to eliminate potential future competitors. The Justice Department, meanwhile, also has been fielding complaints about Facebook, including from people who advocate breaking up the company.

Facebook didn't provide a comment in response. Over the summer, the company said the FTC was investigating "in the areas of social networking or social media services, digital advertising, and/or mobile or online applications."

Google declined to comment. Amazon and Apple didn't immediately respond to requests for comment.

Still another sore point, which has been going on for months, is the Justice Department's decision this year to step into the FTC's antitrust lawsuit against Qualcomm. The commission won a favorable ruling from a California federal judge in May that forced major changes to Qualcomm's business practices, but an appeals court last month stayed the effect of that ruling for now.

The Justice Department is supporting Qualcomm, saying the trial judge's ruling was incorrect in several respects. It also argued in court papers that the ruling would diminish Qualcomm's competitiveness in 5G innovation and impact national security. The appeals court cited the Justice Department's position when it granted Qualcomm a stay last month.

FTC officials believe the department fundamentally misunderstands their case and that the DOJ didn't properly consult them before intervening, according to people familiar with the matter.

Qualcomm has said its business practices were justified and lawful.

The battles between the two agencies are "a real drag on the effectiveness of the U.S. [antitrust] system," said William Kovacic, a former FTC commissioner who is now a George Washington University law professor. "It doesn't destine the individual efforts to failure by any means, but it diminishes the prospects of success. It makes it harder to achieve a good result."

Write to John D. McKinnon at john.mckinnon@wsj.com and Brent Kendall at brent.kendall@wsj.com

 

(END) Dow Jones Newswires

September 16, 2019 17:35 ET (21:35 GMT)

Copyright (c) 2019 Dow Jones & Company, Inc.

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