II 

118TH CONGRESS 

1ST SESSION S. 1073 

To amend the Clayton Act to prevent conflicts of interest and promote 

competition in the sale and purchase of digital advertising. 

IN THE SENATE OF THE UNITED STATES 

MARCH 30, 2023 

Mr. LEE (for himself, Ms. KLOBUCHAR, Mr. CRUZ, Mr. BLUMENTHAL, Mr. 

RUBIO, Ms. WARREN, Mr. SCHMITT, Mr. HAWLEY, Mr. KENNEDY, Mr. 

GRAHAM, and Mr. VANCE) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To amend the Clayton Act to prevent conflicts of interest 

and promote competition in the sale and purchase of 

digital advertising. 

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 ‘‘Advertising Middlemen 

5 Endangering Rigorous Internet Competition Account6 ability Act’’ or the ‘‘AMERICA Act’’. 


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1 SEC. 2. DIGITAL ADVERTISING TRADING TRANSPARENCY 

2 AND COMPETITION. 

3 The Clayton Act (15 U.S.C. 12 et seq.) is amended 

4 by inserting after section 8 (15 U.S.C. 19) the following: 

5 ‘‘SEC. 8A. COMPETITION AND TRANSPARENCY IN DIGITAL 

6 ADVERTISING. 

7 ‘‘(a) DEFINITIONS.—In this section: 

8 ‘‘(1) BROKERAGE CUSTOMER.—The term ‘bro9 kerage customer’ means a person who has purchased 

10 or sold digital advertisements, or directly related 

11 goods or services, through a buy-side brokerage or a 

12 sell-side brokerage. 

13 ‘‘(2) BUY-SIDE BROKERAGE.—The term ‘buy14 side brokerage’ means a person in the business of ef15 fecting transactions on digital advertising exchanges, 

16 including by offering software or services that assist 

17 in serving or displaying digital advertisements, for 

18 other buyers. 

19 ‘‘(3) DIGITAL ADVERTISEMENT.—The term 

20 ‘digital advertisement’ means an advertisement that 

21 is served electronically over a computer network, in22 cluding the internet. 

23 ‘‘(4) DIGITAL ADVERTISING EXCHANGE.—The 

24 term ‘digital advertising exchange’ means a person 

25 who constitutes, maintains, or provides a market26 place for or facilitates bringing together buyers and 


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1 1 or more third-party sellers of digital advertise2 ments, or for otherwise performing with respect to 

3 digital advertising the functions commonly per4 formed by a digital advertising marketplace. 

5 ‘‘(5) DIGITAL ADVERTISING REVENUE.—The 

6 term ‘digital advertising revenue’ means the greater 

7 of— 

8 ‘‘(A) global revenue derived from or di9 rectly related to the operation of a digital ad10 vertising exchange, a buy-side brokerage, or a 

11 sell-side brokerage; 

12 ‘‘(B) the sum of the clearing prices of all 

13 digital advertisements bought or sold from or 

14 through a digital advertising exchange; 

15 ‘‘(C) the total value of the gross adver16 tising spending managed by a buy-side broker17 age; or 

18 ‘‘(D) the total value of the gross adver19 tising sales managed by a sell-side brokerage. 

20 ‘‘(6) DIVESTITURE DEADLINE.—The term ‘di21 vestiture deadline’ means the later of— 

22 ‘‘(A) 30 days after the date on which the 

23 Attorney General approves or denies a required 

24 divestiture; or 


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1 ‘‘(B) 30 days after the expiration of any 

2 applicable waiting period specified in section 

3 7A. 

4 ‘‘(7) EFFECTIVE DATE.—The term ‘effective 

5 date’ means the date that is 1 year after the date 

6 of enactment of this section. 

7 ‘‘(8) OWN.—The term ‘own’ means to own, op8 erate, or control, directly or indirectly, in whole or 

9 in part. 

10 ‘‘(9) PERSON.—The term ‘person’ includes— 

11 ‘‘(A) any subsidiary of an entity; and 

12 ‘‘(B) any corporate parent of an entity. 

13 ‘‘(10) REQUIRED DIVESTITURE.—The term ‘re14 quired divestiture’— 

15 ‘‘(A) means a divestiture, sale, or other 

16 transaction undertaken to comply with any pro17 vision of this Act; and 

18 ‘‘(B) does not include any action required 

19 by a court of the United States. 

20 ‘‘(11) SELL-SIDE BROKERAGE.—The term ‘sell21 side brokerage’ means a person in the business of ef22 fecting transactions on digital advertising exchanges, 

23 including by offering software or services that assist 

24 in serving or displaying digital advertisements, for 

25 third-party sellers. 


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1 ‘‘(12) THIRD-PARTY.—The term ‘third-party’ 

2 means, for each person subject to this Act, an entity 

3 that— 

4 ‘‘(A) neither owns nor is owned by the per5 son; and 

6 ‘‘(B) is not affiliated with the person 

7 through direct or indirect ownership or control. 

8 ‘‘(b) PROHIBITIONS.—No person with more than 

9 $20,000,000,000 (as adjusted each year on January 1 by 

10 an amount equal to the percentage increase, if any, in the 

11 Consumer Price Index, as determined by the Department 

12 of Labor or its successor) in digital advertising revenue 

13 during the previous calendar year may, after the effective 

14 date— 

15 ‘‘(1) own a digital advertising exchange if the 

16 person— 

17 ‘‘(A) owns a sell-side brokerage or a buy18 side brokerage; or 

19 ‘‘(B) is a seller of digital advertising space; 

20 ‘‘(2) own a sell-side brokerage if the person 

21 owns a buy-side brokerage; or 

22 ‘‘(3) own a buy-side brokerage or a sell-side 

23 brokerage if the person is a buyer or seller of digital 

24 advertising space. 


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1 ‘‘(c) REQUIREMENTS.—On and after the effective 

2 date, any person with more than $5,000,000,000 (as ad3 justed each year on January 1 by an amount equal to the 

4 percentage increase, if any, in the Consumer Price Index, 

5 as determined by the Department of Labor or its suc6 cessor) in digital advertising revenue during the previous 

7 calendar year shall be subject to the following require8 ments: 

9 ‘‘(1) BEST INTEREST DUTY.—A buy-side bro10 kerage or sell-side brokerage— 

11 ‘‘(A) shall, in the course of providing serv12 ices as a brokerage, use reasonable diligence, 

13 care, and skill to act in the best interests of the 

14 brokerage customers; and 

15 ‘‘(B) may not put the interests of the bro16 kerage ahead of those of the brokerage cus17 tomers. 

18 ‘‘(2) BEST EXECUTION DUTY.—A buy-side bro19 kerage or sell-side brokerage shall seek the most fa20 vorable terms reasonably available under the cir21 cumstances for each order transaction of the broker22 age customer. 

23 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 

24 ‘‘(A) IN GENERAL.—Upon written request 

25 from a brokerage customer, a buy-side brokerVerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073

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1 age or sell-side brokerage shall supply to the 

2 brokerage customer, within a reasonable time, 

3 information sufficient to permit the brokerage 

4 customer to verify compliance of the brokerage 

5 with the obligations under paragraphs (1) and 

6 (2). 

7 ‘‘(B) CONTENTS.—The information de8 scribed in subparagraph (A) shall include, if re9 quested and to the extent such information is 

10 collected by the brokerage in the ordinary 

11 course of business— 

12 ‘‘(i) in the case of a sell-side broker13 age providing information to a sell-side 

14 brokerage customer— 

15 ‘‘(I) a unique and persistent 

16 identifier that identifies each unique 

17 digital advertising space for sale; 

18 ‘‘(II) for each identifier described 

19 in subclause (I), all bids received, and, 

20 for each bid received, the bid sub21 mitted to the digital advertising ex22 change on behalf of the buy-side bro23 kerage customer, the winning price, 

24 the uniform resource locator or other 

25 property identifier at the lowest level 


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1 of granularity, the identity of the dig2 ital advertising exchange or other dig3 ital advertising venue returning the 

4 bid, date, time that the bid response 

5 was received in microseconds or a 

6 lower level of granularity, web domain 

7 associated with the advertising cre8 ative, the advertising creative size and 

9 format, and whether the bid won the 

10 impression of the seller; 

11 ‘‘(III) the nature of any data col12 lected or derived from the brokerage 

13 customer or any user or customer of 

14 the brokerage customer, and the ways 

15 in which the data is used by the sell16 side brokerage; 

17 ‘‘(IV) the order or bid routing 

18 practices or processes, including any 

19 material exceptions to the standard 

20 practice of the brokerage; and 

21 ‘‘(V) the source and nature of 

22 any compensation paid or received in 

23 connection with transactions; and 


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1 ‘‘(ii) in the case of a buy-side broker2 age providing information to a buy-side 

3 brokerage customer— 

4 ‘‘(I) all bids won by the buy-side 

5 brokerage customer, and for each bid 

6 won, the maximum allowed bid of the 

7 advertiser, if any, the uniform re8 source locator or other property iden9 tifier at the lowest level of granu10 larity, date, the digital advertising ex11 change, the web domain associated 

12 with the advertising creative, the ad13 vertising creative size and format, the 

14 winning price, the bid submitted to 

15 the digital advertising exchange on be16 half of the buy-side brokerage cus17 tomer, and, if possible, whether the ad 

18 served and whether the ad rendered; 

19 ‘‘(II) the order or bid routing 

20 practices or processes; and 

21 ‘‘(III) the source and nature of 

22 any compensation paid or received in 

23 connection with transactions. 

24 ‘‘(C) RETENTION OF RECORDS.— 

25 Brokerages shall retain the applicable records 


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1 specified in subparagraph (B) collected in the 

2 ordinary course of business until provided to a 

3 requesting brokerage customer but not longer 

4 than 90 days. Brokerages shall retain billing in5 formation for brokerage customers for not 

6 fewer than 12 months. 

7 ‘‘(D) USER PRIVACY.— 

8 ‘‘(i) IN GENERAL.—When providing 

9 information to a brokerage customer in re10 sponse to a request authorized by subpara11 graph (A), the brokerage shall, to the 

12 greatest extent possible consistent with the 

13 purpose of subparagraph (A), anonymize, 

14 hash, or otherwise render the information 

15 incapable of being tied to an individual web 

16 user. 

17 ‘‘(ii) PROHIBITING TRACKING.—A 

18 brokerage customer may not use data or 

19 information received in response to a re20 quest made under subparagraph (A) for 

21 any purpose other than— 

22 ‘‘(I) verifying compliance of a 

23 brokerage with the obligations under 

24 paragraphs (1) and (2); or 


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1 ‘‘(II) bringing an action under 

2 subsection (d)(3). 

3 ‘‘(4) FIREWALLS.— 

4 ‘‘(A) BUY-SIDE AND SELL-SIDE

5 BROKERAGES.—Buy-side brokerages and sell6 side brokerages shall establish, maintain, and 

7 enforce written policies and procedures reason8 ably designed to ensure compliance with the ob9 ligations under this subsection. 

10 ‘‘(B) OTHER PERSONS.—Persons not sub11 ject to prohibitions under subsection (b) shall 

12 establish, maintain, and enforce written policies 

13 and procedures reasonably designed to ensure 

14 that the buy-side brokerage, sell-side brokerage, 

15 digital advertising exchange, and role as a 

16 buyer or seller of digital advertising, as applica17 ble, operate separate and independent from one 

18 another and transact business at arm’s length. 

19 ‘‘(5) FAIR ACCESS DUTY.—A digital advertising 

20 exchange shall provide every buyer and seller in the 

21 exchange fair access, including with respect to oper22 ations of the exchange, colocation, any technology 

23 systems or data, information related to transactions, 

24 service, or products offered, exchange processes, and 

25 functionality. 


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1 ‘‘(6) TIME SYNCHRONIZATION.—A digital ad2 vertising exchange, buy-side brokerage, or sell-side 

3 brokerage shall— 

4 ‘‘(A) synchronize its business clocks at a 

5 minimum to within a 2 milliseconds tolerance of 

6 the time maintained by the atomic clock of the 

7 National Institute of Standards and Tech8 nology; and 

9 ‘‘(B) maintain the synchronization de10 scribed in subparagraph (A). 

11 ‘‘(7) DATA OWNERSHIP.—All records pertaining 

12 to an order solicited or submitted by a brokerage 

13 customer, and the subsequent result of the order, 

14 shall remain the property of the customer, including 

15 any bids solicited from or submitted to any digital 

16 advertising exchange, unless the information is oth17 erwise publicly available. 

18 ‘‘(8) ROUTING PRACTICES DISCLOSURE.— 

19 ‘‘(A) IN GENERAL.—Every sell-side broker20 age and buy-side brokerage shall— 

21 ‘‘(i) make publicly available for each 

22 calendar quarter a report on the order 

23 routing practices of the sell-side brokerage 

24 or buy-side brokerage, as applicable, for 


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1 digital advertisements during the quarter 

2 broken down by calendar month; and 

3 ‘‘(ii) retain the report described in 

4 clause (i) posted on an internet website 

5 that is free and readily accessible to the 

6 public for the 3-year period beginning on 

7 the date on which the report is posted. 

8 ‘‘(B) FORMAT.—Reports made available 

9 pursuant to subparagraph (A) shall— 

10 ‘‘(i) be rendered in a format that 

11 makes the reports readily informative to 

12 the average brokerage customer; and 

13 ‘‘(ii) include for the 10 venues to 

14 which the largest number of total bid re15 quests or bid responses were routed for 

16 execution and for any venue to which 5 

17 percent or more of bid requests or bid re18 sponses were routed for execution— 

19 ‘‘(I) the total number of bids 

20 routed; 

21 ‘‘(II) the total number of bids ex22 ecuted; 

23 ‘‘(III) the fill rate of bids; 

24 ‘‘(IV) the average net execution 

25 fee or rebate per 1,000 impressions; 


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1 ‘‘(V) the average time in milli2 seconds between when a bid request is 

3 sent and when a bid response is re4 ceived; and 

5 ‘‘(VI) the value and form of any 

6 compensation given in exchange for 

7 routing or execution. 

8 ‘‘(9) CERTIFICATION.—A digital advertising ex9 change, buy-side brokerage, or sell-side brokerage 

10 shall certify to the Attorney General on an annual 

11 basis that the digital advertising exchange has com12 plied with the requirements under this subsection. 

13 ‘‘(d) ENFORCEMENT.— 

14 ‘‘(1) ATTORNEY GENERAL AND STATE ATTOR15 NEYS GENERAL.— 

16 ‘‘(A) DEFINITION.—In this paragraph, the 

17 term ‘Fund’ means the Antitrust Consumer 

18 Damages Fund established under subparagraph 

19 (D). 

20 ‘‘(B) CIVIL ACTION.—The Attorney Gen21 eral and State attorneys general may bring an 

22 action on behalf of persons in the United States 

23 injured in their business or property by reason 

24 of any violation of this section in any district 

25 court of the United States in the district in 


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1 which the defendant resides or is found or has 

2 an agent, without respect to the amount in con3 troversy, and shall— 

4 ‘‘(i) in a case brought by the Attorney 

5 General or a State attorney general, be en6 titled to injunctive relief; and 

7 ‘‘(ii) in a case brought by the Attor8 ney General, recover damages sustained by 

9 such persons. 

10 ‘‘(C) DAMAGES.— 

11 ‘‘(i) IN GENERAL.—The court may 

12 award under this subsection, pursuant to a 

13 motion by the Attorney General promptly 

14 made, simple interest on actual damages in 

15 accordance with subparagraph (B). 

16 ‘‘(ii) NO DUPLICATIVE AWARD.—A 

17 court may not award any damages under 

18 this subparagraph that are duplicative of 

19 damages awarded before the date of the 

20 award under this subparagraph in a sepa21 rate civil action pertaining to the same 

22 conduct and injured party. 

23 ‘‘(iii) PAYMENTS.—A court awarding 

24 damages to a person in a civil action after 

25 the date of an award of damages under 


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1 this subsection that would be duplicative of 

2 damages awarded to the Attorney General 

3 on behalf of the person shall direct that 

4 such damages shall first be paid by the At5 torney General from amounts in the Fund 

6 and, to the extent such damages are not 

7 fully paid from amounts in the Fund, shall 

8 be paid by the defendant. 

9 ‘‘(D) ANTITRUST CONSUMER DAMAGES

10 FUND.— 

11 ‘‘(i) IN GENERAL.—There is estab12 lished in the Treasury of the United States 

13 a fund to be known as the ‘Antitrust Con14 sumer Damages Fund’, which shall consist 

15 of amounts deposited under clause (ii). 

16 ‘‘(ii) DEPOSITS AND AVAILABILITY.— 

17 Notwithstanding section 3302 of title 31, 

18 United States Code, any amounts received 

19 by the Attorney General under an award 

20 under this subsection— 

21 ‘‘(I) shall be deposited in the 

22 Fund; and 

23 ‘‘(II) shall be available to the At24 torney General, without further ap25 propriation, for distribution to persons 


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1 in the United States harmed by the 

2 applicable violation of the Sherman 

3 Act (15 U.S.C. 1 et seq.). 

4 ‘‘(iii) DEPOSITS INTO GENERAL

5 FUND.—Effective on the day after the date 

6 that is 10 years after the date on which an 

7 award is received under this paragraph, 

8 the unobligated balances in the Fund of 

9 amounts that were received under the 

10 award are rescinded and shall be deposited 

11 in the general fund of the Treasury. 

12 ‘‘(2) DIVESTITURE ENFORCEMENT.—The Attor13 ney General may bring an action on behalf of the 

14 United States in any district court of the United 

15 States in the district in which the defendant resides 

16 or is found or has an agent, and may obtain injunc17 tive relief upon showing by a preponderance of the 

18 evidence that the defendant has— 

19 ‘‘(A) violated a requirement of subsection 

20 (e); or 

21 ‘‘(B) undertaken a required divestiture 

22 that unnecessarily harms or threatens competi23 tion in any market. 

24 ‘‘(3) PRIVATE RIGHT OF ACTION.— 


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1 ‘‘(A) IN GENERAL.—A brokerage customer 

2 harmed by a knowing violation of subsection (c) 

3 by a person with more than $20,000,000,000 

4 (as adjusted each year on January 1 by an 

5 amount equal to the percentage increase, if any, 

6 in the Consumer Price Index, as determined by 

7 the Department of Labor or its successor) in 

8 digital advertising revenue during the previous 

9 calendar year may bring a civil action in an ap10 propriate court to obtain injunctive relief, if ap11 propriate, and recover damages in the amount 

12 of the greater of— 

13 ‘‘(i) $1,000,000 for each month in 

14 which the violation occurred and reason15 able attorney’s fees; or 

16 ‘‘(ii) actual damages and reasonable 

17 attorney’s fees. 

18 ‘‘(B) NO CLASS ACTION WAIVER.—No per19 son covered by this section may require a class 

20 action waiver for claims under this section, in21 cluding for arbitration. 

22 ‘‘(C) TIMING.—A civil action for a viola23 tion of subsection (b) may be brought at any 

24 time after the later of— 


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1 ‘‘(i) the expiration of any applicable 

2 divestiture deadline; or 

3 ‘‘(ii) the expiration of the deadline de4 scribed in subsection (e)(1) if no filing has 

5 been made. 

6 ‘‘(e) DIVESTITURE.— 

7 ‘‘(1) FILING.—Any agreement or other docu8 ment setting out the terms of a required divestiture 

9 shall be filed with the Attorney General not later 

10 than the later of— 

11 ‘‘(A) the effective date; or 

12 ‘‘(B) the earlier of— 

13 ‘‘(i) 30 days after the date on which 

14 an agreement making a required divesti15 ture under this Act is executed; or 

16 ‘‘(ii) 180 days after meeting the cri17 teria specified in any paragraph of sub18 section (b). 

19 ‘‘(2) ATTORNEY GENERAL REVIEW.—The At20 torney General shall approve a required divestiture 

21 upon a showing by the person making the divestiture 

22 that the terms of the divestiture, including the quali23 fications of any counterparty to the divestiture, will 

24 not unnecessarily harm or threaten competition in 

25 any market. 


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1 ‘‘(3) TIMING.— 

2 ‘‘(A) IN GENERAL.—The Attorney General 

3 shall grant or deny approval of a required di4 vestiture, unless agreed to by the parties, not 

5 later than the later of— 

6 ‘‘(i) 60 days after receipt of all infor7 mation obtained pursuant to subparagraph 

8 (5); or 

9 ‘‘(ii) 60 days after receipt of the filing 

10 made under subparagraph (1). 

11 ‘‘(B) COMPLETION.—A divestiture shall be 

12 completed not later than the divestiture dead13 line. 

14 ‘‘(4) GUIDANCE.—The Attorney General shall— 

15 ‘‘(A) not later than 120 days after the date 

16 of enactment of this section, issue guidance on 

17 the divestiture process under this subsection 

18 and the certification requirement under sub19 section (c)(9); and 

20 ‘‘(B) update the guidance described in sub21 paragraph (A) as the Attorney General deter22 mines is appropriate. 

23 ‘‘(5) COMPULSORY PROCESS.—The Attorney 

24 General may request or issue a civil investigative de25 mand under section 3 of the Antitrust Civil Process 


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1 Act (15 U.S.C. 1312) for documents from any per2 son involved in a required divestiture to determine 

3 the competitive effects of the divestiture. 

4 ‘‘(f) RULES OF CONSTRUCTION.—Nothing in this 

5 section shall— 

6 ‘‘(1) prohibit a person from— 

7 ‘‘(A) selling their own inventory of adver8 tising space if— 

9 ‘‘(i) the inventory was not acquired 

10 solely for the purposes of resale, except to 

11 monetize the content or intellectual prop12 erty of the person; and 

13 ‘‘(ii) the person does not also assist a 

14 third party in the sale or purchase of ad15 vertising space, other than purchasing ad16 vertising space from the person; or 

17 ‘‘(B) buying inventory to market the prod18 ucts or services of the person; 

19 ‘‘(2) abridge or supersede any provision of, or 

20 rules issued pursuant to, section 7A; 

21 ‘‘(3) prohibit a person from, consistent with the 

22 antitrust laws, entering into a joint venture or other 

23 collaboration to prevent harm from spam, fraud, or 

24 other forms of abuse in digital advertising; or 


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1 ‘‘(4) require the disclosure of information if the 

2 disclosure would violate a law of the United States 

3 or a foreign country.’’. 

Æ 


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