Ownership

The Federal Trade Commission – with the Department of Justice – issues draft Vertical Merger Guidelines for public comment. I concur in this action, which allows the Agencies to gather and consider input from the public before the Guidelines are finalized. As a more general matter, I also concur with the decision to update and replace the outdated 1984 Non-Horizontal Merger Guidelines.

The 1984 Non-Horizontal Merger Guidelines should be rescinded, as they represent an antiquated, narrow, and overly permissive mode of thinking that is not reflective of today’s economy or the current approach to enforcement. The US economy is far different than it was forty years ago. Increasing concentration, declining new firm formation, and other market trends necessitate a modernization of vertical merger review. The draft guidelines miss the mark.

I cannot join my colleagues in voting to release these proposed Vertical Merger Guidelines for public comment and instead abstain. I come to this decision with some reluctance because I believe the 1984 Non-Horizontal Guidelines should be rescinded and rewritten and because I recognize the utility of public comments.

As we enter the third decade of the 21st century—the digital century—it is time for the public interest to reassert itself. Thus far, the digital entrepreneurs have been making the rules about the digital economy. Early in this decade, We the People must reassert a visible hand on the tiller of digital activity. Will public policy intervene to protect personal privacy? Can our leaders act to preserve the idea of a competition-based economy?

Anger toward big technology companies has led to multiple antitrust investigations, calls for a new federal data privacy law and criticism of the companies’ political ad policies. Perhaps no issue about the tech companies, though, has united lawmakers in the Capitol like the decimation of local news. Lawmakers from both parties blame companies like Facebook and Google, which dominate the online ad industry. Senate Majority Leader Mitch McConnell (R-KY) gave a big boost to a bill that may provide some papers a lifeboat.

The Department of Justice withdrew the 1984 DOJ Non-Horizontal Merger Guidelines, and, together with the Federal Trade Commission, released new draft 2020 Vertical Merger Guidelines and seek public comment. The draft guidelines, open to comment for 30 days, describe how the federal antitrust agencies review vertical mergers to evaluate whether the mergers violate antitrust law.

Almost six months after Facebook agreed to a $5 billion settlement of privacy violations, the issue is anything but settled. The deal with the Federal Trade Commission announced in July to settle allegations that Facebook broke its promises to protect users’ privacy is still under review by a federal judge, who has been weighing objections from opponents who believe the deal is inadequate.

It was the biggest corporate merger in history, and it stunned the markets. On Jan. 10, 2000, America Online, the world’s largest internet service provider, bid $183 billion for Time Warner, the world’s largest content provider. But the merger tanked. Time Warner cast off AOL in 2009. Verizon acquired AOL in 2015 for $4.4 billion, less than 1% of its 2000 value, adjusted for the S&P 500 index. AT&T bought Time Warner in 2018 for 20% of the adjusted price AOL paid in 2000. The merger’s failure is often attributed to executive mismanagement and clashing corporate cultures.

States suing to block T-Mobile's proposed acquisition of Sprint urged the federal judge overseeing the landmark antitrust trial not to defer to the Trump administration’s approval of the $26.5 billion deal. Lawyers for NY and CA, which are leading the lawsuit for the states, said in a filing late Jan 8 that the deal’s approval by the Justice Department and the Federal Communications Commission doesn’t carry any special weight and should be ignored by the judge.

Department of Justice Antitrust Chief Makan Delrahim is facing congressional scrutiny over his recently revealed texts with DISH Chairman Charlie Ergen, according to a set of questions for the record from House Judiciary Antitrust Subcommittee Chairman David Cicilline (D-RI). I