The mother of all anti-trust bills was just proposed to Congress. The Digital Consumer Protection Commission (DCPC) Act would create a new regulatory body called the Office of Licensing for Dominant Platforms (OLDP), which will require large platforms to apply for a license in order to operate. Large platforms will need to follow a laundry list of previously failed anti-Tech policy proposals to receive a license. If passed, everything from Amazon Prime to freedom of speech will be under threat.
The Commission would mirror the structure of the Federal Trade Commission (FTC), in that the leadership would be bipartisan with no more than three of the five board members coming from any one political party. The crux of the OLDP’s authority derives from its ability to revoke a large platform’s license to operate if they fail to meet certain standards.
To limit the agency’s regulatory range to only “Big Tech,” licensing will only be required for online platforms with over 25 million monthly visitors and over a $250 billion market capitalization. The size threshold separates it from technology-specific agencies like the Nuclear Regulatory Commission and the Federal Communications Commission, making it the first official “big is bad” agency.
The DCPC’s standards are a requirement to grant notice before content moderation decisions, a prohibition on self-preferencing, which would undermine popular services like Amazon Prime and cloud computing, and a “duty of care” which would be the only standard not size constrained and would mandate content moderation, potentially running afoul of the First Amendment.
DCPC’s prohibition on self-preferencing, similar to the American Innovation and Choice Online Act (AICOA), would undermine many of the services that consumers enjoy that rely on the practice. When polled, most consumers opposed eliminating self-preferencing, after realizing what such a policy would do to their services. Likewise, small businesses have issued statements condemning the prohibition out of fear that they could lose their quality assurance and speedy deliveries.
The main support base for this measure comes from medium-sized businesses that compete with larger tech platforms, demonstrating that this prohibition is another case of the government picking winners and losers while neglecting the consumer impact.
The “duty to care,” stipulation is similar to bills like the Kids Online Safety Act (KOSA), which requires platforms to mitigate “social ills,” like discrimination and cyberbullying. The problem with this measure and with KOSA is that it risks violating the First Amendment. Mandating that platforms “mitigate harm” caused online could qualify as state-enforced content moderation, which is contrary to the First Amendment.
Apart from legal concerns, actually enforcing vague rules will prove difficult. What constitutes “cyberbullying,” or even vaguer “addictive/harmful behavior” is highly subjective and will change depending on the enforcer. A Republican enforcer could deem drag shows as harmful, while a Democrat could do the same with misgendering.
Politicization is inevitable.
A common thread of the different aspects of the DCPC Act, is they have all previously been attempted by other separate bills. Not only that, other aspects of the bill, like a ban on non-competes, have been attempted by other regulators like the FTC. The new DCPC would amount to an omnibus bill on past policy failures, wrapped up with a new agency that would be auxiliary to two existing agencies. There are already concerns that the DOJ and the FTC are too similar in their anti-trust roles, now Congress might be adding a third agency into the mix.
If passed, this bill would institute a whole new regime of “big is bad” rulemaking and innovation-killing regulation. At a time when Americans desperately need fewer regulators, Congress might institute a whole new agency to pick up on the failures of Lina Khan’s FTC.
Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.