[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3825 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 3825
To promote competition and economic opportunity in digital markets by
eliminating the conflicts of interest that arise from dominant online
platforms' concurrent ownership or control of an online platform and
certain other businesses.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 11, 2021
Ms. Jayapal (for herself, Mr. Gooden of Texas, Mr. Cicilline, Mr. Buck,
and Mr. Nadler) introduced the following bill; which was referred to
the Committee on the Judiciary
_______________________________________________________________________
A BILL
To promote competition and economic opportunity in digital markets by
eliminating the conflicts of interest that arise from dominant online
platforms' concurrent ownership or control of an online platform and
certain other businesses.
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 ``Ending Platform Monopolies Act''.
SEC. 2. UNLAWFUL CONFLICTS OF INTEREST.
(a) Violation.--As of the date an online platform is designated as
a covered platform under subsection 6(a), it shall be unlawful for a
covered platform operator to own, control, or have a beneficial
interest in a line of business other than the covered platform that--
(1) utilizes the covered platform for the sale or provision
of products or services;
(2) offers a product or service that the covered platform
requires a business user to purchase or utilize as a condition
for access to the covered platform, or as a condition for
preferred status or placement of a business user's product or
services on the covered platform; or
(3) gives rise to a conflict of interest.
(b) Conflict of Interest.--For purposes of this section, the term
``conflict of interest'' includes the conflict of interest that arises
when--
(1) a covered platform operator owns or controls a line of
business, other than the covered platform; and
(2) the covered platform's ownership or control of that
line of business creates the incentive and ability for the
covered platform to--
(A) 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
(B) 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.
SEC. 3. ENFORCEMENT.
(a) In General.--The Commission and the Department of Justice 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.
(b) 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).
(c) Civil Penalties.--Any person, or any individual who is an
officer, director, partner, or employee of a person, who fails to
comply with any provision of this Act within two years of the
Commission or Department of Justice designating a covered platform
under section 6(a), shall be liable to the United States for a civil
penalty in an amount not more than the greater of--
(1) 15 percent of the total average daily United States
revenue of the person for the previous calendar year; or
(2) 30 percent of the total average daily 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.
(d) 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.
SEC. 4. LIMITATIONS ON BOARD MEMBERSHIP AND OTHER SERVICE.
(a) In General.--An individual who is an officer, director,
employee, including an agent, representative, or contractor, of a
covered platform or who has control over the covered platform may not
serve at the same time as an officer, director, employee, or other
institution-affiliated party, including as an agent, representative, or
contractor, of a formerly affiliated person.
(b) Termination of Service.--Any individual whose service violates
subsection (a) as of the date an online platform is designated as a
covered platform under subsection 6(a), shall terminate such service as
soon as is practicable and in no event, later than the end of the 60-
day period beginning on the date the online platform is designated as a
covered platform.
SEC. 5. DEFINITIONS.
For purposes of this Act:
(1) Antitrust laws.--The term ``antitrust laws'' has the
meaning given the term in subsection (a) of the first section
of the Clayton Act (15 U.S.C. 12).
(2) Beneficial interest.--The term ``Beneficial Interest''
means with respect to a person, having access to competitively
sensitive information or the ability to affect the person's
strategic decisions.
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) 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.
(5) Covered platform.--The term ``covered platform'' means
an online platform--
(A) that has been designated as a ``covered
platform'' under section 6(a); or
(B) that--
(i) at the time of the Commission's or the
Department of Justice's designation under
section 6(a), 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
at, adjusted for inflation on the basis of the
Consumer Price Index, the time of the
Commission's or the Department of Justice's
designation under section 6(a) 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.
(6) Covered platform operator.--The term ``covered platform
operator'' means a person that, directly or indirectly, owns or
controls a covered platform.
(7) Critical trading partner.--The term ``critical trading
partner'' means an entity 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.
(8) 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.
(9) Formerly affiliated person.--The term ``formerly
affiliated person'' means a person that was owned or controlled
by a covered platform prior to termination of the affiliation
described in section 3.
(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) 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).
SEC. 6. IMPLEMENTATION.
(a) Covered Platform Designation.--
(1) The Commission or Department of Justice shall designate
whether an entity is a covered platform for the purpose of
implementing and enforcing this Act. Such designation shall--
(A) be based on a finding that the criteria set
forth in paragraph (5)(B)(i)-(iii) of section 5 are
met;
(B) be issued in writing and published in the
Federal Register; and
(C) will apply for 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 (b).
(b) 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 (a) should be removed prior to the
expiration of the 10-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;
(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; and
(3) obtain the concurrence of the Commission or the
Department of Justice, as appropriate, before granting a
request submitted under paragraph (1).
SEC. 7. JUDICIAL REVIEW.
(a) In General.--Any party that is subject to a covered platform
designation under section 6(a) of this Act, a final order issued in any
district court of the United States, or a final order of the Commission
issued in an administrative adjudicative proceeding may within 30 days
of the issuance of such designation or order, petition for review of
such designation or 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 section 6(a) of this Act or a
final order of the Commission, the findings of the Commission or the
Department of Justice as to the facts, if supported by evidence, shall
be conclusive.
SEC. 8. RULES 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. 9. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, and the application of the remaining provisions
of this Act to any person or circumstance shall not be affected.
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