[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3816 Introduced in House (IH)]

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117th CONGRESS
  1st Session
                                H. R. 3816

  To provide that certain discriminatory conduct by covered platforms 
               shall be unlawful, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 11, 2021

 Mr. Cicilline (for himself, Mr. Gooden of Texas, Mr. Nadler, and Mr. 
    Buck) introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide that certain discriminatory conduct by covered platforms 
               shall be unlawful, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``American Choice and Innovation 
Online Act''.

SEC. 2. UNLAWFUL DISCRIMINATORY CONDUCT.

    (a) Violation.--It shall be unlawful for a person operating a 
covered platform, in or affecting commerce, to engage in any conduct in 
connection with the operation of the covered platform that--
            (1) advantages the covered platform operator's own 
        products, services, or lines of business over those of another 
        business user;
            (2) excludes or disadvantages the products, services, or 
        lines of business of another business user relative to the 
        covered platform operator's own products, services, or lines of 
        business; or
            (3) discriminates among similarly situated business users.
    (b) Other Discriminatory Conduct.--It shall be unlawful for a 
person operating a covered platform, in or affecting commerce, to--
            (1) restrict or impede the capacity of a business user to 
        access or interoperate with the same platform, operating 
        system, hardware and software features that are available to 
        the covered platform operator's own products, services, or 
        lines of business;
            (2) condition access to the covered platform or preferred 
        status or placement on the covered platform on the purchase or 
        use of other products or services offered by the covered 
        platform operator;
            (3) use non-public data obtained from or generated on the 
        platform by the activities of a business user or its customers 
        that is generated through an interaction with the business 
        user's products or services to offer or support the offering of 
        the covered platform operator's own products or services;
            (4) restrict or impede a business user from accessing data 
        generated on the platform by the activities of the business 
        user or its customers through an interaction with the business 
        user's products or services, such as contractual or technical 
        restrictions that prevent the portability of such data by the 
        business user to other systems or applications;
            (5) restrict or impede covered platform users from un-
        installing software applications that have been preinstalled on 
        the covered platform or changing default settings that direct 
        or steer covered platform users to products or services offered 
        by the covered platform operator;
            (6) restrict or impede businesses users from communicating 
        information or providing hyperlinks on the covered platform to 
        covered platform users to facilitate business transactions;
            (7) in connection with any user interfaces, including 
        search or ranking functionality offered by the covered 
        platform, treat the covered platform operator's own products, 
        services, or lines of business more favorably than those of 
        another business user;
            (8) interfere or restrict a business user's pricing of its 
        goods or services;
            (9) restrict or impede a business user, or a business 
        user's customers or users, from interoperating or connecting to 
        any product or service; and
            (10) retaliate against any business user or covered 
        platform user that raises concerns with any law enforcement 
        authority about actual or potential violations of State or 
        Federal law.
    (c) Affirmative Defense.--
            (1) In general.--Subsection (a) and (b) shall not apply if 
        the defendant establishes by clear and convincing evidence that 
        the conduct described in subsections (a) or (b)--
                    (A) would not result in harm to the competitive 
                process by restricting or impeding legitimate activity 
                by business users; or
                    (B) was narrowly tailored, could not be achieved 
                through a less discriminatory means, was nonpretextual, 
                and was necessary to--
                            (i) prevent a violation of, or comply with, 
                        Federal or State law; or
                            (ii) protect user privacy or other non-
                        public data.
            (2) Availability of affirmative defense.--Notwithstanding 
        any other provision of law, whether user conduct would 
        constitute a violation of section 1030 of title 18, United 
        States Code, is not dispositive of whether the defendant has 
        established the affirmative defense under this section.
    (d) Covered Platform Designation.--The Federal Trade Commission or 
Department of Justice shall designate a covered platform for the 
purpose of implementing and enforcing this Act. Such designation 
shall--
            (1) be based on a finding that the criteria set forth in 
        subsection (f)(4)(i)-(iii) are met;
            (2) be issued in writing and published in the Federal 
        Register; and
            (3) will apply for ten years from its issuance regardless 
        of whether there is a change in control or ownership over the 
        covered platform unless the Commission or the Department of 
        Justice removes the designation pursuant to subsection (f).
    (e) Removal of Covered Platform Designation.--The Commission or the 
Department of Justice shall--
            (1) consider whether its designation of a covered platform 
        pursuant to subsection (d) should be removed prior to the 
        expiration of the ten-year period if the covered platform 
        operator files a request with the Commission or the Department 
        of Justice, which shows that the online platform is no longer a 
        critical trading partner; and
            (2) determine whether to grant a request submitted under 
        paragraph 1 not later than 120 days after the date of the 
        filing of such request.
    (f) Remedies.--
            (1) Civil penalty.--Any covered platform operator who is 
        found to have violated subsections (a) or (b) shall be liable 
        to the United States or the Commission for a civil penalty, 
        which shall accrue to the United States, in an amount not more 
        than the greater of--
                    (A) 15 percent of the total United States revenue 
                of the person for the previous calendar year; or
                    (B) 30 percent of the United States revenue of the 
                person in any line of business affected or targeted by 
                the unlawful conduct during the period of the unlawful 
                conduct. This civil penalty may be recovered in a civil 
                action brought by the United States or the Commission.
            (2) Remedies in addition.--Remedies provided in this 
        subsection are in addition to, and not in lieu of, any other 
        remedy available under Federal or State law.
                    (A) Restitution; contract rescission and 
                reformation; refunds; return of property.--The 
                Assistant Attorney General of the Antitrust Division, 
                the Commission, or the attorney general of any State 
                may seek, and the court may order, with respect to the 
                violation that gives rise to the suit, restitution for 
                losses, rescission or reformation of contracts, refund 
                of money, or return of property.
                    (B) Disgorgement.--The Assistant Attorney General 
                of the Antitrust Division or the Commission may seek, 
                and the court may order, disgorgement of any unjust 
                enrichment that a covered platform operator obtained as 
                a result of the violation that gives rise to the suit.
                    (C) Injunctions.--The Assistant Attorney General of 
                the Antitrust Division or the Commission may seek, and 
                the court may order, relief in equity as necessary to 
                prevent, restrain, or prohibit violations of this Act.
                    (D) Conflict of interest.--
                            (i) If the fact finder determines that a 
                        violation of this Act arises from a conflict of 
                        interest related to the covered platform's 
                        concurrent operation of multiple lines of 
                        business, the court shall consider requiring 
                        divestiture of the line or lines of business 
                        that give rise to such conflict.
                            (ii) For purposes of this section, the term 
                        ``conflict of interest'' includes the conflict 
                        of interest that arises when--
                                    (I) a covered platform operator 
                                owns or controls a line of business, 
                                other than the covered platform; and
                                    (II) the covered platform's 
                                ownership or control of that line of 
                                business creates the incentive and 
                                ability for the covered platform to--
                                            (aa) advantage the covered 
                                        platform operator's own 
                                        products, services, or lines of 
                                        business on the covered 
                                        platform over those of a 
                                        competing business or a 
                                        business that constitutes 
                                        nascent or potential 
                                        competition to the covered 
                                        platform operator; or
                                            (bb) exclude from, or 
                                        disadvantage, the products, 
                                        services, or lines of business 
                                        on the covered platform of a 
                                        competing business or a 
                                        business that constitutes 
                                        nascent or potential 
                                        competition to the covered 
                                        platform operator.
            (3) Repeat offenders.--If the fact finder determines that a 
        covered platform has engaged in a pattern or practice of 
        violating this Act, the court shall consider requiring that the 
        Chief Executive Officer forfeit to the United States Treasury 
        any compensation received by that person during the 12 months 
        preceding or following the filing of a complaint for an alleged 
        violation of this Act.
    (g) Definitions.--In this section:
            (1) Antitrust laws.--The term ``antitrust laws'' has the 
        meaning given the term in subsection (a) of section 1 of the 
        Clayton Act (15 U.S.C. 12).
            (2) Business user.--The term ``Business User'' means a 
        person that utilizes or plans to utilize the covered platform 
        for the sale or provision of products or services.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Covered platform.--The term ``covered platform'' means 
        an online platform--
                    (A) that has been designated as a ``covered 
                platform'' under section 2(d); or
                    (B) that--
                            (i) at the time of the Commission's or the 
                        Department of Justice's designation under 
                        section 2(d), or any of the twelve months 
                        preceding that time, or in any of the 12 months 
                        preceding the filing of a complaint for an 
                        alleged violation of this Act--
                                    (I) has at least 50,000,000 United 
                                States-based monthly active users on 
                                the online platform; or
                                    (II) has at least 100,000 United 
                                States-based monthly active business 
                                users on the platform;
                            (ii) is owned or controlled by a person 
                        with net annual sales, or a market 
                        capitalization greater than $600,000,000,000, 
                        adjusted for inflation on the basis of the 
                        Consumer Price Index, at the time of the 
                        Commission's or the Department of Justice's 
                        designation under section 2(d) or any of the 
                        two years preceding that time, or at any time 
                        in the 2 years preceding the filing of a 
                        complaint for an alleged violation of this Act; 
                        and
                            (iii) is a critical trading partner for the 
                        sale or provision of any product or service 
                        offered on or directly related to the online 
                        platform.
            (5) Covered platform operator.--The term ``covered platform 
        operator'' means a person that owns or controls a covered 
        platform.
            (6) Critical trading partner.--The term ``critical trading 
        partner'' means a trading partner that has the ability to 
        restrict or impede--
                    (A) the access of a business user to its users or 
                customers; or
                    (B) the access of a business user to a tool or 
                service that it needs to effectively serve its users or 
                customers.
            (7) Person.--The term ``person'' has the meaning given the 
        term in subsection (a) of section 1 of the Clayton Act (15 
        U.S.C. 12).
            (8) Data.--
                    (A) In general.--Not later than six months after 
                the date of enactment of this Act, the Commission shall 
                adopt rules in accordance with section 553 of title 5, 
                United States Code, to define the term ``data'' for the 
                purpose of implementing and enforcing this Act.
                    (B) Data.--The term ``data'' shall include 
                information that is collected by or provided to a 
                covered platform or competing business or a potential 
                competing business that is linked, or reasonably 
                linkable, to a specific user or customer of the covered 
                platform or a competing business or a potential 
                competing business.
            (9) Business user.--The term ``business user'' means a 
        person that utilizes or plans to utilize the covered platform 
        for the sale or provision of products or services.
            (10) Online platform.--The term ``online platform'' means a 
        website, online or mobile application, operating system, 
        digital assistant, or online service that--
                    (A) enables a user to generate content that can be 
                viewed by other users on the platform or to interact 
                with other content on the platform;
                    (B) facilitates the offering, sale, purchase, 
                payment, or shipping of goods or services, including 
                software applications, between and among consumers or 
                businesses not controlled by the platform; or
                    (C) enables user searches or queries that access or 
                display a large volume of information.
            (11) Control.--The term ``control'' with respect to a 
        person means--
                    (A) holding 25 percent or more of the stock of the 
                person;
                    (B) having the right to 25 percent or more of the 
                profits of the person;
                    (C) having the right to 25 percent or more of the 
                assets of the person, in the event of the person's 
                dissolution;
                    (D) if the person is a corporation, having the 
                power to designate 25 percent or more of the directors 
                of the person;
                    (E) if the person is a trust, having the power to 
                designate 25 percent or more of the trustees; or
                    (F) otherwise exercises substantial control over 
                the person.
    (h) Enforcement.--
            (1) In general.--.The Commission, Department of Justice, 
        and any attorney general of a State subject to the requirements 
        in paragraph (4) shall enforce this Act in the same manner, by 
        the same means, and with the same jurisdiction, powers, and 
        duties as though all applicable terms and provisions of the 
        Federal Trade Commission Act (15 U.S.C. 41 et seq.) or the 
        Clayton Act (15 U.S.C. 12 et seq.), as appropriate, were 
        incorporated into and made a part of this Act.
            (2) Unfair methods of competition.--A violation of this Act 
        shall also constitute an unfair method of competition under 
        section 5 of the Federal Trade Commission Act (15 U.S.C. 5).
            (3) Commission independent litigation authority.--If the 
        Commission has reason to believe that a covered platform 
        violated this Act, the Commission may commence a civil action, 
        in its own name by any of its attorneys designated by it for 
        such purpose, to recover a civil penalty and seek other 
        appropriate relief in a district court of the United States 
        against the covered platform operator.
            (4) Parens patriae.--Any attorney general of a State may 
        bring a civil action in the name of such State for a violation 
        of this Act as parens patriae on behalf of natural persons 
        residing in such State, in any district court of the United 
        States having jurisdiction of the defendant, and may secure any 
        form of relief provided for in this section.
    (i) Emergency Relief.--
            (1) The Commission, Assistant Attorney General of the 
        Antitrust Division, or any attorney general of a State may seek 
        a temporary injunction requiring the covered platform operator 
        to take or stop taking any action for not more than 120 days 
        and the court shall grant such relief if the Commission, the 
        United States, or the attorney general of a State proves--
                    (A) there is a plausible claim that a covered 
                platform operator took an action that violates this 
                Act; and
                    (B) that action impairs the ability of at least one 
                company to compete with the covered platform.
            (2) The emergency relief shall not last more than 120 days 
        from the filing of the complaint.
            (3) The court shall terminate the emergency relief at any 
        time that the covered platform operator proves that the 
        Commission, the United States, or the attorney general of the 
        State seeking relief under this section has not taken 
        reasonable steps to investigate whether a violation has 
        occurred.
            (4) Nothing in this subsection prevents or limits the 
        Commission, the United States, or any attorney general of any 
        State from seeking other equitable relief as provided in 
        subsection (h) of this section.
    (j) Statute of Limitations.--A proceeding for a violation of this 
section may be commenced not later than 6 years after such violation 
occurs.

SEC. 3. JUDICIAL REVIEW.

    (a) In General.--Any party that is subject to a covered platform 
designation under section 2(d) of this Act, a final order issued in any 
district court, or a final order of the Commission issued in an 
administrative adjudicative proceeding may within 30 days of the 
issuance of such order, petition for review of such order in the United 
States Court of Appeals for the District of Columbia Circuit.
    (b) Treatment of Findings.--In a proceeding for judicial review of 
a covered platform designation under to section 2(d) of this Act or a 
final order of the Commission, the findings of the Commission or the 
Assistant Attorney General as to the facts, if supported by evidence, 
shall be conclusive.

SEC. 4. BUREAU OF DIGITAL MARKETS.

    (a) Establishment of Bureau.--As soon as practicable, but not later 
than 180 days after the date of enactment of this Act, the Federal 
Trade Commission shall establish within the Commission a bureau of 
digital markets for purposes of enforcement of this Act.
    (b) Leadership.--The head of the Bureau of Digital Markets shall be 
the Director of the Bureau of Digital Markets, who shall--
            (1) report directly to the Chair of the Federal Trade 
        Commission; and
            (2) be appointed by the Chair of the Federal Trade 
        Commission.
    (c) Bureau Staff.--The Bureau of Digital Markets shall retain or 
employ legal, technology, economic, research, and service staff 
sufficient to carry out the functions, powers, and duties of the 
Bureau.
    (d) Reporting Requirement.--Not later than 1 year after the date of 
enactment of this Act, the Bureau of Digital Markets shall on an annual 
basis publish and submit a report to the Committee on the Judiciary of 
the House of Representatives and the Committee on the Judiciary of the 
Senate describing the Bureau's enforcement activities during the 
previous 12-month period.

SEC. 5. ENFORCEMENT GUIDELINES.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Commission and the Assistant Attorney General of the 
Antitrust Division shall jointly issue guidelines outlining policies 
and practices, relating to agency enforcement of this Act, with the 
goal of promoting transparency and deterring violations.
    (b) Updates.--The Commission and the Assistant Attorney General of 
the Antitrust Division shall update the joint guidelines issued under 
subsection (a), as needed to reflect current agency policies and 
practices, but not less frequently than once every 4 years beginning on 
the date of enactment of this Act.
    (c) Operation.--The Joint Guidelines issued under this section do 
not confer any rights upon any person, State, or locality, nor shall 
operate to bind the Commission, Department of Justice, or any person, 
State, or locality to the approach recommended in such Guidelines.

SEC. 6. SUITS BY PERSONS INJURED.

    (a) In General.--Except as provided in subsection (b), any person 
who shall be injured in his business or property by reason of anything 
forbidden in this Act sue therefor in any district court of the United 
States in the district in which the defendant resides or is found or 
has an agent, without respect to the amount in controversy, and shall 
recover threefold the damages by him sustained, and the cost of suit, 
including a reasonable attorney's fee. The court may award under this 
section, pursuant to a motion by such person promptly made, simple 
interest on actual damages for the period beginning on the date of 
service of such person's pleading setting forth a claim under the 
antitrust laws and ending on the date of judgment, or for any shorter 
period therein, if the court finds that the award of such interest for 
such period is just in the circumstances. In determining whether an 
award of interest under this section for any period is just in the 
circumstances, the court shall consider only--
            (1) whether such person or the opposing party, or either 
        party's representative, made motions or asserted claims or 
        defenses so lacking in merit as to show that such party or 
        representative acted intentionally for delay, or otherwise 
        acted in bad faith;
            (2) whether, in the course of the action involved, such 
        person or the opposing party, or either party's representative, 
        violated any applicable rule, statute, or court order providing 
        for sanctions for dilatory behavior or otherwise providing for 
        expeditious proceedings; and
            (3) whether such person or the opposing party, or either 
        party's representative, engaged in conduct primarily for the 
        purpose of delaying the litigation or increasing the cost 
        thereof.
    (b) Amount of Damages Payable to Foreign States and 
Instrumentalities of Foreign States.--
            (1) Except as provided in paragraph (2), any person who is 
        a foreign state may not recover under subsection (a) an amount 
        in excess of the actual damages sustained by it and the cost of 
        suit, including a reasonable attorney's fee.
            (2) Paragraph (1) shall not apply to a foreign state if--
                    (A) such foreign state would be denied, under 
                section 1605(a)(2) of title 28, immunity in a case in 
                which the action is based upon a commercial activity, 
                or an act, that is the subject matter of its claim 
                under this section;
                    (B) such foreign state waives all defenses based 
                upon or arising out of its status as a foreign state, 
                to any claims brought against it in the same action;
                    (C) such foreign state engages primarily in 
                commercial activities; and
                    (D) such foreign state does not function, with 
                respect to the commercial activity, or the act, that is 
                the subject matter of its claim under this section as a 
                procurement entity for itself or for another foreign 
                state.
    (c) Injunctive Relief.--Any person, firm, corporation, or 
association shall be entitled to sue for and have injunctive relief, in 
any court of the United States having jurisdiction over the parties, 
against threatened loss or damage by a violation of this Act, when and 
under the same conditions and principles as injunctive relief against 
threatened conduct that will cause loss or damage is granted by courts 
of equity, under the rules governing such proceedings, and upon the 
execution of proper bond against damages for an injunction 
improvidently granted and a showing that the danger of irreparable loss 
or damage is immediate, a preliminary injunction may issue: Provided, 
That nothing herein contained shall be construed to entitle any person, 
firm, corporation, or association, except the United States, to bring 
suit for injunctive relief against any common carrier subject to the 
jurisdiction of the Surface Transportation Board under subtitle IV of 
title 49. In any action under this section in which the plaintiff 
substantially prevails, the court shall award the cost of suit, 
including a reasonable attorney's fee, to such plaintiff.

SEC. 7. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to limit any authority of 
the Attorney General or the Federal Trade Commission under the 
antitrust laws, the Federal Trade Commission Act (15 U.S.C. 45), or any 
other provision of law or to limit the application of any law.

SEC. 8. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act 
and of the amendments made by this Act, and the application of the 
remaining provisions of this Act and amendments to any person or 
circumstance shall not be affected.
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