[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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