[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3197 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 3197

 To promote competition and economic opportunity in digital markets by 
establishing that certain acquisitions by dominant online platforms are 
                               unlawful.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 4, 2021

  Ms. Klobuchar (for herself and Mr. Cotton) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To promote competition and economic opportunity in digital markets by 
establishing that certain acquisitions by dominant online platforms are 
                               unlawful.

    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 ``Platform Competition and Opportunity 
Act of 2021''.

SEC. 2. UNLAWFUL ACQUISITIONS.

    (a) Violation.--It shall be unlawful for a covered platform 
operator to acquire directly or indirectly--
            (1) the whole or any part of the stock or other share 
        capital of another person engaged in commerce or in any 
        activity affecting commerce; or
            (2) the whole or any part of the assets of another person 
        engaged in commerce or in any activity affecting commerce.
    (b) Exclusion.--An acquisition shall not be unlawful under 
subsection (a) if the acquiring covered platform operator demonstrates 
by clear and convincing evidence that--
            (1) the acquisition is a transaction that is described in 
        section 7A(c) of the Clayton Act;
            (2) the acquired stock, other share capital, or assets are 
        valued at less than $50,000,000; or
            (3) the acquired assets or the issuer of the acquired stock 
        do not--
                    (A) compete with the covered platform or covered 
                platform operator for the sale or provision of any 
                product or service;
                    (B) constitute nascent or potential competition to 
                the covered platform or covered platform operator for 
                the sale or provision of any product or service;
                    (C) enhance or increase the covered platform's or 
                covered platform operator's market position with 
                respect to the sale or provision of any product or 
                service offered on or directly related to the covered 
                platform; and
                    (D) enhance or increase the covered platform's or 
                covered platform operator's ability to maintain its 
                market position with respect to the sale or provision 
                of any product or service offered on or directly 
                related to the covered platform.
    (c) User Attention.--For purposes of this Act, competition, nascent 
competition, or potential competition for the sale or provision of any 
product or service includes competition for a user's attention.
    (d) Role of Data.--For purposes of this Act, an acquisition that 
results in access to additional data may, without more--
            (1) enhance or increase the market position of a covered 
        platform or covered platform operator; or
            (2) enhance or increase the ability of a covered platform 
        or covered platform operator to maintain its market position.

SEC. 3. DEFINITIONS.

    (a) 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).
    (b) Commission.--The term ``Commission'' means the Federal Trade 
Commission.
    (c) Control.--The term ``control'' with respect to a person means--
            (1) holding 25 percent or more of the stock of the person;
            (2) having the right to 25 percent or more of the profits 
        of the person;
            (3) having the right to 25 percent or more of the assets of 
        the person, in the event of the person's dissolution;
            (4) if the person is a corporation, having the power to 
        designate 25 percent or more of the directors of the person;
            (5) if the person is a trust, having the power to designate 
        25 percent or more of the trustees; or
            (6) otherwise exercises substantial control over the 
        person.
    (d) Covered Platform.--The term ``covered platform'' means an 
online platform--
            (1) that has been designated as a ``covered platform'' 
        under section 4(a); or
            (2) that--
                    (A) at any point during the 12 months preceding a 
                designation under section 4(a) or at any point during 
                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 operator; or
                            (ii) has at least 100,000 United States-
                        based monthly active business users on the 
                        online platform;
                    (B) as of the date of enactment of this Act, was 
                owned or controlled by a person with United States net 
                annual sales of $600,000,000,000 in the prior calendar 
                year or with a market capitalization of greater than 
                $600,000,000,000, as measured by the simple average of 
                the closing price per share of the common stock issued 
                by the person for the trading days in the 180-day 
                period ending on the date of enactment of this Act; and
                    (C) is a critical trading partner for the sale or 
                provision of any product or service offered on or 
                directly related to the online platform.
    (e) Covered Platform Operator.--The term ``covered platform 
operator'' means a person that owns or controls a covered platform.
    (f) Critical Trading Partner.--The term ``critical trading 
partner'' means a person that--
            (1) owns or controls an online platform; and
            (2) has the ability to restrict or impede the access of--
                    (A) a business user to its users or customers; or
                    (B) a business user to a tool or service that it 
                needs to effectively serve its users or customers.
    (g) 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.
    (h) Online Platform.--The term ``online platform'' means a website, 
online or mobile application, mobile operating system, digital 
assistant, or online service that--
            (1) 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;
            (2) facilitates the offering, sale, purchase, payment, or 
        shipping of products or services, including software 
        applications, between and among consumers or businesses not 
        controlled by the platform operator; or
            (3) enables user searches or queries that access or display 
        a large volume of information.
    (i) 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).
    (j) State.--The term ``State'' means a State, the District of 
Columbia, the Commonwealth of Puerto Rico, and any other territory or 
possession of the United States.

SEC. 4. IMPLEMENTATION.

    (a) Covered Platform Designation.--
            (1) The Federal Trade 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 section 3(d)(2)(A)-(C) are met;
                    (B) be issued in writing and published in the 
                Federal Register; and
                    (C) apply for 10 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 under 
                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 
        under 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 no longer meets the criteria set 
        forth in section 3(d)(2)(A)-(C);
            (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. 5. ENFORCEMENT.

    (a) In General.--Except as otherwise provided in this Act--
            (1) the Commission 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 of the 
        Federal Trade Commission Act (15 U.S.C. 41 et seq.) were 
        incorporated into and made a part of this Act;
            (2) the Attorney General 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 of the Sherman 
        Act (15 U.S.C. 1 et seq.), Clayton Act (15 U.S.C. 12 et seq.), 
        and Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) were 
        incorporated into and made a part of this Act; and
            (3) any attorney general of a State 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 
        of the Sherman Act (15 U.S.C. 1 et seq.) and the Clayton Act 
        (15 U.S.C. 12 et seq.) 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. 45).
    (c) Commission Independent Litigation Authority.--If the Commission 
has reason to believe that a person 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.
    (d) 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.
    (e) Injunctive Relief.--The Assistant Attorney General of the 
Antitrust Division, the Commission, or the attorney general of any 
State may seek, and the court may order, relief in equity as necessary 
to prevent, restrain, or prohibit violations of this Act.
    (f) Remedies.--Remedies provided in this subsection are in addition 
to, and not in lieu of, any other remedy available under Federal or 
State law.

SEC. 6. 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 
they operate to bind the Commission, Department of Justice, or any 
person, State, or locality to the approach recommended in such 
Guidelines.

SEC. 7. 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 may 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 this 
Act 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, United States Code, 
                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 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, 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. 8. JUDICIAL REVIEW.

    (a) In General.--Any party that is subject to a covered platform 
designation under section 4(a) of this Act, a decision in response to a 
request to remove a covered platform designation under section 4(b) of 
this Act, a final order issued in any district court under this Act, or 
a final order of the Commission issued in an administrative 
adjudicative proceeding under this Act may within 30 days of the 
issuance of such designation, decision, or order, petition for review 
of such designation, decision, 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 4(a) of this Act, a 
decision in response to a request to remove a covered platform 
designation under section 4(b) of this Act, or a final order of the 
Commission issued in an administrative adjudicative proceeding under 
this Act, the findings of the Commission or the Assistant Attorney 
General as to the facts, if supported by evidence, shall be conclusive.

SEC. 9. RULES OF CONSTRUCTION.

     Nothing in this Act shall be construed to limit any authority of 
the Attorney General or the 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. 10. 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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