II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Platform Competition 

5 and Opportunity Act of 2021’’. 

6 SEC. 2. UNLAWFUL ACQUISITIONS. 

7 (a) VIOLATION.—It shall be unlawful for a covered 

8 platform operator to acquire directly or indirectly— 


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1 (1) the whole or any part of the stock or other 

2 share capital of another person engaged in com3 merce or in any activity affecting commerce; or 

4 (2) the whole or any part of the assets of an5 other person engaged in commerce or in any activity 

6 affecting commerce. 

7 (b) EXCLUSION.—An acquisition shall not be unlaw8 ful under subsection (a) if the acquiring covered platform 

9 operator demonstrates by clear and convincing evidence 

10 that— 

11 (1) the acquisition is a transaction that is de12 scribed in section 7A(c) of the Clayton Act; 

13 (2) the acquired stock, other share capital, or 

14 assets are valued at less than $50,000,000; or 

15 (3) the acquired assets or the issuer of the ac16 quired stock do not— 

17 (A) compete with the covered platform or 

18 covered platform operator for the sale or provi19 sion of any product or service; 

20 (B) constitute nascent or potential com21 petition to the covered platform or covered plat22 form operator for the sale or provision of any 

23 product or service; 

24 (C) enhance or increase the covered plat25 form’s or covered platform operator’s market 


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1 position with respect to the sale or provision of 

2 any product or service offered on or directly re3 lated to the covered platform; and 

4 (D) enhance or increase the covered plat5 form’s or covered platform operator’s ability to 

6 maintain its market position with respect to the 

7 sale or provision of any product or service of8 fered on or directly related to the covered plat9 form. 

10 (c) USER ATTENTION.—For purposes of this Act, 

11 competition, nascent competition, or potential competition 

12 for the sale or provision of any product or service includes 

13 competition for a user’s attention. 

14 (d) ROLE OF DATA.—For purposes of this Act, an 

15 acquisition that results in access to additional data may, 

16 without more— 

17 (1) enhance or increase the market position of 

18 a covered platform or covered platform operator; or 

19 (2) enhance or increase the ability of a covered 

20 platform or covered platform operator to maintain 

21 its market position. 

22 SEC. 3. DEFINITIONS. 

23 (a) ANTITRUST LAWS.—The term ‘‘antitrust laws’’ 

24 has the meaning given the term in subsection (a) of sec25 tion 1 of the Clayton Act (15 U.S.C. 12). 


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1 (b) COMMISSION.—The term ‘‘Commission’’ means 

2 the Federal Trade Commission. 

3 (c) CONTROL.—The term ‘‘control’’ with respect to 

4 a person means— 

5 (1) holding 25 percent or more of the stock of 

6 the person; 

7 (2) having the right to 25 percent or more of 

8 the profits of the person; 

9 (3) having the right to 25 percent or more of 

10 the assets of the person, in the event of the person’s 

11 dissolution; 

12 (4) if the person is a corporation, having the 

13 power to designate 25 percent or more of the direc14 tors of the person; 

15 (5) if the person is a trust, having the power 

16 to designate 25 percent or more of the trustees; or 

17 (6) otherwise exercises substantial control over 

18 the person. 

19 (d) COVERED PLATFORM.—The term ‘‘covered plat20 form’’ means an online platform— 

21 (1) that has been designated as a ‘‘covered plat22 form’’ under section 4(a); or 

23 (2) that— 

24 (A) at any point during the 12 months 

25 preceding a designation under section 4(a) or at 


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1 any point during the 12 months preceding the 

2 filing of a complaint for an alleged violation of 

3 this Act— 

4 (i) has at least 50,000,000 United 

5 States-based monthly active users on the 

6 online platform operator; or 

7 (ii) has at least 100,000 United 

8 States-based monthly active business users 

9 on the online platform; 

10 (B) as of the date of enactment of this 

11 Act, was owned or controlled by a person with 

12 United States net annual sales of 

13 $600,000,000,000 in the prior calendar year or 

14 with a market capitalization of greater than 

15 $600,000,000,000, as measured by the simple 

16 average of the closing price per share of the 

17 common stock issued by the person for the 

18 trading days in the 180-day period ending on 

19 the date of enactment of this Act; and 

20 (C) is a critical trading partner for the sale 

21 or provision of any product or service offered on 

22 or directly related to the online platform. 

23 (e) COVERED PLATFORM OPERATOR.—The term 

24 ‘‘covered platform operator’’ means a person that owns or 

25 controls a covered platform. 


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1 (f) CRITICAL TRADING PARTNER.—The term ‘‘crit2 ical trading partner’’ means a person that— 

3 (1) owns or controls an online platform; and 

4 (2) has the ability to restrict or impede the ac5 cess of— 

6 (A) a business user to its users or cus7 tomers; or 

8 (B) a business user to a tool or service 

9 that it needs to effectively serve its users or 

10 customers. 

11 (g) BUSINESS USER.—The term ‘‘business user’’ 

12 means a person that utilizes or plans to utilize the covered 

13 platform for the sale or provision of products or services. 

14 (h) ONLINE PLATFORM.—The term ‘‘online plat15 form’’ means a website, online or mobile application, mo16 bile operating system, digital assistant, or online service 

17 that— 

18 (1) enables a user to generate content that can 

19 be viewed by other users on the platform or to inter20 act with other content on the platform; 

21 (2) facilitates the offering, sale, purchase, pay22 ment, or shipping of products or services, including 

23 software applications, between and among con24 sumers or businesses not controlled by the platform 

25 operator; or 


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1 (3) enables user searches or queries that access 

2 or display a large volume of information. 

3 (i) PERSON.—The term ‘‘person’’ has the meaning 

4 given the term in subsection (a) of section 1 of the Clayton 

5 Act (15 U.S.C. 12). 

6 (j) STATE.—The term ‘‘State’’ means a State, the 

7 District of Columbia, the Commonwealth of Puerto Rico, 

8 and any other territory or possession of the United States. 

9 SEC. 4. IMPLEMENTATION. 

10 (a) COVERED PLATFORM DESIGNATION.— 

11 (1) The Federal Trade Commission or Depart12 ment of Justice shall designate whether an entity is 

13 a covered platform for the purpose of implementing 

14 and enforcing this Act. Such designation shall— 

15 (A) be based on a finding that the criteria 

16 set forth in section 3(d)(2)(A)–(C) are met; 

17 (B) be issued in writing and published in 

18 the Federal Register; and 

19 (C) apply for 10 years from its issuance 

20 regardless of whether there is a change in con21 trol or ownership over the covered platform un22 less the Commission or the Department of Jus23 tice removes the designation under subsection 

24 (b). 


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1 (b) REMOVAL OF COVERED PLATFORM DESIGNA2 TION.—The Commission or the Department of Justice 

3 shall— 

4 (1) consider whether its designation of a cov5 ered platform under subsection (a) should be re6 moved prior to the expiration of the 10-year period 

7 if the covered platform operator files a request with 

8 the Commission or the Department of Justice, which 

9 shows that the online platform no longer meets the 

10 criteria set forth in section 3(d)(2)(A)–(C); 

11 (2) determine whether to grant a request sub12 mitted under paragraph 1 not later than 120 days 

13 after the date of the filing of such request; and 

14 (3) obtain the concurrence of the Commission 

15 or the Department of Justice, as appropriate, before 

16 granting a request submitted under paragraph (1). 

17 SEC. 5. ENFORCEMENT. 

18 (a) IN GENERAL.—Except as otherwise provided in 

19 this Act— 

20 (1) the Commission shall enforce this Act in the 

21 same manner, by the same means, and with the 

22 same jurisdiction, powers, and duties as though all 

23 applicable terms of the Federal Trade Commission 

24 Act (15 U.S.C. 41 et seq.) were incorporated into 

25 and made a part of this Act; 


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1 (2) the Attorney General shall enforce this Act 

2 in the same manner, by the same means, and with 

3 the same jurisdiction, powers and duties as though 

4 all applicable terms of the Sherman Act (15 U.S.C. 

5 1 et seq.), Clayton Act (15 U.S.C. 12 et seq.), and 

6 Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) 

7 were incorporated into and made a part of this Act; 

8 and 

9 (3) any attorney general of a State shall en10 force this Act in the same manner, by the same 

11 means, and with the same jurisdiction, powers and 

12 duties as though all applicable terms of the Sherman 

13 Act (15 U.S.C. 1 et seq.) and the Clayton Act (15 

14 U.S.C. 12 et seq.) were incorporated into and made 

15 a part of this Act. 

16 (b) UNFAIR METHODS OF COMPETITION.—A viola17 tion of this Act shall also constitute an unfair method of 

18 competition under section 5 of the Federal Trade Commis19 sion Act (15 U.S.C. 45). 

20 (c) COMMISSION INDEPENDENT LITIGATION AU21 THORITY.—If the Commission has reason to believe that 

22 a person violated this Act, the Commission may commence 

23 a civil action, in its own name by any of its attorneys des24 ignated by it for such purpose, to recover a civil penalty 


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1 and seek other appropriate relief in a district court of the 

2 United States. 

3 (d) PARENS PATRIAE.—Any attorney general of a 

4 State may bring a civil action in the name of such State 

5 for a violation of this Act as parens patriae on behalf of 

6 natural persons residing in such State, in any district 

7 court of the United States having jurisdiction of the de8 fendant, and may secure any form of relief provided for 

9 in this section. 

10 (e) INJUNCTIVE RELIEF.—The Assistant Attorney 

11 General of the Antitrust Division, the Commission, or the 

12 attorney general of any State may seek, and the court may 

13 order, relief in equity as necessary to prevent, restrain, 

14 or prohibit violations of this Act. 

15 (f) REMEDIES.—Remedies provided in this subsection 

16 are in addition to, and not in lieu of, any other remedy 

17 available under Federal or State law. 

18 SEC. 6. ENFORCEMENT GUIDELINES. 

19 (a) IN GENERAL.—Not later than 1 year after the 

20 date of enactment of this Act, the Commission and the 

21 Assistant Attorney General of the Antitrust Division shall 

22 jointly issue guidelines outlining policies and practices, re23 lating to agency enforcement of this Act, with the goal 

24 of promoting transparency and deterring violations. 


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1 (b) UPDATES.—The Commission and the Assistant 

2 Attorney General of the Antitrust Division shall update 

3 the joint guidelines issued under subsection (a), as needed 

4 to reflect current agency policies and practices, but not 

5 less frequently than once every 4 years beginning on the 

6 date of enactment of this Act. 

7 (c) OPERATION.—The Joint Guidelines issued under 

8 this section do not confer any rights upon any person, 

9 State, or locality, nor shall they operate to bind the Com10 mission, Department of Justice, or any person, State, or 

11 locality to the approach recommended in such Guidelines. 

12 SEC. 7. SUITS BY PERSONS INJURED. 

13 (a) IN GENERAL.—Except as provided in subsection 

14 (b), any person who shall be injured in his business or 

15 property by reason of anything forbidden in this Act may 

16 sue therefor in any district court of the United States in 

17 the district in which the defendant resides or is found or 

18 has an agent, without respect to the amount in con19 troversy, and shall recover threefold the damages by him 

20 sustained, and the cost of suit, including a reasonable at21 torney’s fee. The court may award under this section, pur22 suant to a motion by such person promptly made, simple 

23 interest on actual damages for the period beginning on 

24 the date of service of such person’s pleading setting forth 

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1 ment, or for any shorter period therein, if the court finds 

2 that the award of such interest for such period is just in 

3 the circumstances. In determining whether an award of 

4 interest under this section for any period is just in the 

5 circumstances, the court shall consider only— 

6 (1) whether such person or the opposing party, 

7 or either party’s representative, made motions or as8 serted claims or defenses so lacking in merit as to 

9 show that such party or representative acted inten10 tionally for delay, or otherwise acted in bad faith; 

11 (2) whether, in the course of the action in12 volved, such person or the opposing party, or either 

13 party’s representative, violated any applicable rule, 

14 statute, or court order providing for sanctions for 

15 dilatory behavior or otherwise providing for expedi16 tious proceedings; and 

17 (3) whether such person or the opposing party, 

18 or either party’s representative, engaged in conduct 

19 primarily for the purpose of delaying the litigation 

20 or increasing the cost thereof. 

21 (b) AMOUNT OF DAMAGES PAYABLE TO FOREIGN

22 STATES AND INSTRUMENTALITIES OF FOREIGN

23 STATES.— 

24 (1) Except as provided in paragraph (2), any 

25 person who is a foreign state may not recover under 


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1 subsection (a) an amount in excess of the actual 

2 damages sustained by it and the cost of suit, includ3 ing a reasonable attorney’s fee. 

4 (2) Paragraph (1) shall not apply to a foreign 

5 state if— 

6 (A) such foreign state would be denied, 

7 under section 1605(a)(2) of title 28, United 

8 States Code, immunity in a case in which the 

9 action is based upon a commercial activity, or 

10 an act, that is the subject matter of its claim 

11 under this section; 

12 (B) such foreign state waives all defenses 

13 based upon or arising out of its status as a for14 eign state, to any claims brought against it in 

15 the same action; 

16 (C) such foreign state engages primarily in 

17 commercial activities; and 

18 (D) such foreign state does not function, 

19 with respect to the commercial activity, or the 

20 act, that is the subject matter of its claim 

21 under this section as a procurement entity for 

22 itself or for another foreign state. 

23 (c) INJUNCTIVE RELIEF.—Any person shall be enti24 tled to sue for and have injunctive relief, in any court of 

25 the United States having jurisdiction over the parties, 


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1 against threatened loss or damage by a violation of this 

2 Act, when and under the same conditions and principles 

3 as injunctive relief against threatened conduct that will 

4 cause loss or damage is granted by courts of equity, under 

5 the rules governing such proceedings, and upon the execu6 tion of proper bond against damages for an injunction im7 providently granted and a showing that the danger of ir8 reparable loss or damage is immediate, a preliminary in9 junction may issue: Provided, That nothing herein con10 tained shall be construed to entitle any person, except the 

11 United States, to bring suit for injunctive relief against 

12 any common carrier subject to the jurisdiction of the Sur13 face Transportation Board under subtitle IV of title 49. 

14 In any action under this section in which the plaintiff sub15 stantially prevails, the court shall award the cost of suit, 

16 including a reasonable attorney’s fee, to such plaintiff. 

17 SEC. 8. JUDICIAL REVIEW. 

18 (a) IN GENERAL.—Any party that is subject to a cov19 ered platform designation under section 4(a) of this Act, 

20 a decision in response to a request to remove a covered 

21 platform designation under section 4(b) of this Act, a final 

22 order issued in any district court under this Act, or a final 

23 order of the Commission issued in an administrative adju24 dicative proceeding under this Act may within 30 days of 

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1 tion for review of such designation, decision, or order in 

2 the United States Court of Appeals for the District of Co3 lumbia Circuit. 

4 (b) TREATMENT OF FINDINGS.—In a proceeding for 

5 judicial review of a covered platform designation under 

6 section 4(a) of this Act, a decision in response to a request 

7 to remove a covered platform designation under section 

8 4(b) of this Act, or a final order of the Commission issued 

9 in an administrative adjudicative proceeding under this 

10 Act, the findings of the Commission or the Assistant At11 torney General as to the facts, if supported by evidence, 

12 shall be conclusive. 

13 SEC. 9. RULES OF CONSTRUCTION. 

14 Nothing in this Act shall be construed to limit any 

15 authority of the Attorney General or the Commission 

16 under the antitrust laws, the Federal Trade Commission 

17 Act (15 U.S.C. 45), or any other provision of law or to 

18 limit the application of any law. 

19 SEC. 10. SEVERABILITY. 

20 If any provision of this Act, an amendment made by 

21 this Act, or the application of such provision or amend22 ment to any person or circumstance is held to be unconsti23 tutional, the remainder of this Act and of the amendments 

24 made by this Act, and the application of the remaining 


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1 provisions of this Act and amendments to any person or 

2 circumstance shall not be affected. 

Æ 


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