II 

117TH CONGRESS 

2D SESSION S. 4258 

To prevent conflicts of interest and promote competition in the sale and 

purchase of digital advertising. 

IN THE SENATE OF THE UNITED STATES 

MAY 19 (legislative day, MAY 17), 2022 

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

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

A BILL 

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 ‘‘Competition and 

5 Transparency in Digital Advertising Act’’. 

6 SEC. 2. DIGITAL ADVERTISING TRADING TRANSPARENCY 

7 AND COMPETITION. 

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

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


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

2 ADVERTISING. 

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

4 ‘‘(1) BROKERAGE CUSTOMER.—The term ‘bro5 kerage customer’ means a person who has purchased 

6 or sold digital advertisements, or directly related 

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

8 sell-side brokerage. 

9 ‘‘(2) BUY-SIDE BROKERAGE.—The term ‘buy10 side brokerage’ means a person in the business of ef11 fecting transactions on digital advertising exchanges, 

12 including by offering software or services that assist 

13 in serving or displaying digital advertisements, for 

14 other buyers. 

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

16 ‘digital advertisement’ means an advertisement that 

17 is served electronically over a computer network, in18 cluding the internet. 

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

20 term ‘digital advertising exchange’ means a person 

21 who constitutes, maintains, or provides a market22 place for or facilitates bringing together buyers and 

23 1 or more sellers of digital advertisements, or for 

24 otherwise performing with respect to digital adver25 tising the functions commonly performed by a digital 

26 advertising marketplace. 


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

2 term ‘digital advertising revenue’ means the greater 

3 of— 

4 ‘‘(A) global revenue derived from or di5 rectly related to the operation of a digital ad6 vertising exchange, a buy-side brokerage, or a 

7 sell-side brokerage; or 

8 ‘‘(B) the greater of— 

9 ‘‘(i) the sum of the clearing prices of 

10 all digital advertisements bought or sold 

11 from or through a digital advertising ex12 change; 

13 ‘‘(ii) the total value of the gross ad14 vertising spending managed by a buy-side 

15 brokerage; or 

16 ‘‘(iii) the total value of the gross ad17 vertising sales managed by a sell-side bro18 kerage. 

19 ‘‘(6) DIVESTITURE DEADLINE.—The term ‘di20 vestiture deadline’ means the later of— 

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

22 Attorney General approves or denies a required 

23 divestiture; or 

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

25 applicable waiting period under section 7A. 


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

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

3 of enactment of this section. 

4 ‘‘(8) OWN.—The term ‘own’ means to own, op5 erate, or control, directly or indirectly, in whole or 

6 in part. 

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

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

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

10 ‘‘(10) REQUIRED DIVESTITURE.—The term ‘re11 quired divestiture’— 

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

13 transaction undertaken to comply with any pro14 vision of this Act; and 

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

16 by a court of the United States. 

17 ‘‘(11) SELL-SIDE BROKERAGE.—The term ‘sell18 side brokerage’ means a person in the business of ef19 fecting transactions on digital advertising exchanges, 

20 including by offering software or services that assist 

21 in serving or displaying digital advertisements, for 

22 other sellers. 

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

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

25 that— 


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1 ‘‘(A) neither owns nor is owned by that 

2 person; and 

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

4 through direct or indirect ownership or control. 

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

6 $20,000,000,000 (as adjusted each year on January 1 by 

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

8 Consumer Price Index, as determined by the Department 

9 of Labor or its successor) in digital advertising revenue 

10 during the previous calendar year may, after the effective 

11 date— 

12 ‘‘(1) own a digital advertising exchange if that 

13 person owns either a sell-side brokerage or a buy14 side brokerage, or is a seller of digital advertising 

15 space; 

16 ‘‘(2) own a sell-side brokerage if that person 

17 owns a buy-side brokerage; or 

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

19 brokerage if that person is also a buyer or seller of 

20 digital advertising space. 

21 ‘‘(c) REQUIREMENTS.—Any person with more than 

22 $5,000,000,000 (as adjusted each year on January 1 by 

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

24 Consumer Price Index, as determined by the Department 

25 of Labor or its successor) in digital advertising revenue 


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1 during the previous calendar year shall be subject to, as 

2 of the effective date, the following requirements: 

3 ‘‘(1) BEST INTEREST DUTY.—A buy-side bro4 kerage or sell-side brokerage shall, in the course of 

5 providing services as a brokerage, use reasonable 

6 diligence, care, and skill to act in the best interests 

7 of their brokerage customers, and may not put their 

8 own interests ahead of those of their brokerage cus9 tomers. 

10 ‘‘(2) BEST EXECUTION DUTY.—A buy-side bro11 kerage or sell-side brokerage shall seek the most fa12 vorable terms reasonably available under the cir13 cumstances for each order transaction of the broker14 age customer. 

15 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 

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

17 from a brokerage customer, a buy-side broker18 age or sell-side brokerage shall supply to that 

19 brokerage customer, within a reasonable time, 

20 information sufficient to permit the brokerage 

21 customer to verify compliance of the brokerage 

22 with its obligations under paragraphs (1) and 

23 (2). 

24 ‘‘(B) CONTENTS.—The information de25 scribed in subparagraph (A) shall include, if reVerDate Sep 11 2014 15:42 May 25, 2022 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4258.IS S4258

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1 quested and to the extent such information is 

2 collected by the brokerage in the ordinary 

3 course of business— 

4 ‘‘(i) in the case of a sell-side broker5 age providing information to a sell-side 

6 brokerage customer— 

7 ‘‘(I) a unique and persistent 

8 identifier that identifies each unique 

9 digital advertising space for sale; 

10 ‘‘(II) for each identifier described 

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

12 for each bid received, the bid sub13 mitted to the digital advertising ex14 change on behalf of the buy-side bro15 kerage customer, the winning price, 

16 the uniform resource locator or other 

17 property identifier at the lowest level 

18 of granularity, the identity of the dig19 ital advertising exchange or other dig20 ital advertising venue returning the 

21 bid, date, time that the bid response 

22 was received in microseconds or a 

23 lower level of granularity, web domain 

24 associated with the advertising cre25 ative, the advertising creative size and 


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1 format, and whether the bid won the 

2 seller’s impression; 

3 ‘‘(III) the nature of any data col4 lected or derived from the brokerage 

5 customer or any user or customer of 

6 the brokerage customer, and the ways 

7 in which that data is used by the sell8 side brokerage; 

9 ‘‘(IV) the order or bid routing 

10 practices or processes, including any 

11 material exceptions to the standard 

12 practice of the brokerage; and 

13 ‘‘(V) the source and nature of 

14 any compensation paid or received in 

15 connection with transactions; and 

16 ‘‘(ii) in the case of a buy-side broker17 age providing information to a buy-side 

18 brokerage customer— 

19 ‘‘(I) all bids won by the buy-side 

20 brokerage customer, and for each bid 

21 won, the maximum allowed bid of the 

22 advertiser, if any, the uniform re23 source locator or other property iden24 tifier at the lowest level of granu25 larity, date, the digital advertising exVerDate Sep 11 2014 15:42 May 25, 2022 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4258.IS S4258

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1 change, the web domain associated 

2 with the advertising creative, the ad3 vertising creative size and format, the 

4 winning price, the bid submitted to 

5 the digital advertising exchange on be6 half of the buy-side brokerage cus7 tomer, and, if possible, whether the ad 

8 served and whether the ad rendered; 

9 ‘‘(II) the order or bid routing 

10 practices or processes; and 

11 ‘‘(III) the source and nature of 

12 any compensation paid or received in 

13 connection with transactions. 

14 ‘‘(C) RETENTION OF RECORDS.— 

15 Brokerages shall retain the records specified in 

16 subparagraph (B), where applicable and when 

17 collected in the ordinary course of business, 

18 until provided to a requesting brokerage cus19 tomer but not longer than 90 days. Brokerages 

20 shall retain billing information for their broker21 age customers for not fewer than 12 months. 

22 ‘‘(D) USER PRIVACY.— 

23 ‘‘(i) IN GENERAL.—When providing 

24 information to a brokerage customer in re25 sponse to a request authorized by subparaVerDate Sep 11 2014 15:42 May 25, 2022 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4258.IS S4258

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1 graph (A), the brokerage shall, to the 

2 greatest extent possible consistent with the 

3 purpose of subparagraph (A), anonymize, 

4 hash, or otherwise render the information 

5 incapable of being tied to an individual web 

6 user. 

7 ‘‘(ii) PROHIBITING TRACKING.—A 

8 brokerage customer may not use data or 

9 information received in response to a re10 quest made under subparagraph (A) for 

11 any purpose other than— 

12 ‘‘(I) verifying compliance of a 

13 brokerage with its obligations under 

14 paragraphs (1) and (2); or 

15 ‘‘(II) bringing an action under 

16 subsection (d)(3). 

17 ‘‘(4) FIREWALLS.— 

18 ‘‘(A) BUY-SIDE AND SELL-SIDE

19 BROKERAGES.—Buy-side brokerages and sell20 side brokerages shall establish, maintain, and 

21 enforce written policies and procedures reason22 ably designed to ensure compliance with the ob23 ligations under this subsection. 

24 ‘‘(B) OTHER PERSONS.—Persons not sub25 ject to prohibitions under subsection (b) shall 


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1 establish, maintain, and enforce written policies 

2 and procedures reasonably designed to ensure 

3 that their buy-side brokerage, sell-side broker4 age, digital advertising exchange, and role as a 

5 buyer or seller of digital advertising, where ap6 plicable, operate separate and independent from 

7 one another and transact business at arm’s 

8 length. 

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

10 exchange shall provide every buyer and seller in the 

11 exchange fair access, including with respect to oper12 ations of the exchange, co-location, any technology 

13 systems or data, information related to transactions, 

14 service, or products offered, exchange processes, and 

15 functionality. 

16 ‘‘(6) TIME SYNCHRONIZATION.—A digital ad17 vertising exchange, buy-side brokerage, or sell-side 

18 brokerage shall— 

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

20 minimum to within a 2 milliseconds tolerance of 

21 the time maintained by the atomic clock of the 

22 National Institute of Standards and Tech23 nology; and 

24 ‘‘(B) maintain the synchronization de25 scribed in subparagraph (A). 


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

2 to an order solicited or submitted by a brokerage 

3 customer, and the subsequent result of that order, 

4 shall remain the property of that customer, includ5 ing any bids solicited from or submitted to any dig6 ital advertising exchange, unless the information is 

7 otherwise publicly available. 

8 ‘‘(8) ROUTING PRACTICES DISCLOSURE.— 

9 ‘‘(A) IN GENERAL.—Every sell-side broker10 age and buy-side brokerage shall— 

11 ‘‘(i) make publicly available for each 

12 calendar quarter a report on the order 

13 routing practices of the sell-side brokerage 

14 or buy-side brokerage, as applicable, for 

15 digital advertisements during that quarter 

16 broken down by calendar month; and 

17 ‘‘(ii) retain the report described in 

18 clause (i) posted on an internet website 

19 that is free and readily accessible to the 

20 public for 3-year period beginning on the 

21 date on which the report is posted. 

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

23 pursuant to subparagraph (A) shall— 


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1 ‘‘(i) be rendered in a format that 

2 makes the reports readily informative to 

3 the average brokerage customer; and 

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

5 which the largest number of total bid re6 quests or bid responses were routed for 

7 execution and for any venue to which 5 

8 percent or more of bid requests or bid re9 sponses were routed for execution— 

10 ‘‘(I) the total number of bids 

11 routed; 

12 ‘‘(II) the total number of bids ex13 ecuted; 

14 ‘‘(III) the fill rate of bids; 

15 ‘‘(IV) the average net execution 

16 fee or rebate per 1,000 impressions; 

17 ‘‘(V) the average time in milli18 seconds between when a bid request is 

19 sent and when a bid response is re20 ceived; and 

21 ‘‘(VI) the value and form of any 

22 compensation given in exchange for 

23 routing or execution. 

24 ‘‘(9) CERTIFICATION.—A digital advertising ex25 change, buy-side brokerage, or sell-side brokerage 


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1 shall certify to the Attorney General on an annual 

2 basis that the digital advertising exchange has com3 plied with the requirements under this subsection. 

4 ‘‘(d) ENFORCEMENT.— 

5 ‘‘(1) ATTORNEY GENERAL AND STATE ATTOR6 NEYS GENERAL.— 

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

8 and State attorneys general may bring an ac9 tion on behalf of persons in the United States 

10 injured in their business or property by reason 

11 of any violation of this Act in any district court 

12 of the United States in the district in which the 

13 defendant resides or is found or has an agent, 

14 without respect to the amount in controversy, 

15 and shall— 

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

17 General or a State attorney general, be en18 titled to injunctive relief; and 

19 ‘‘(ii) in a case brought by the Attor20 ney General, recover damages sustained by 

21 such persons. 

22 ‘‘(B) DAMAGES.— 

23 ‘‘(i) IN GENERAL.—The court may 

24 award under this subsection, pursuant to a 

25 motion by the Attorney General promptly 


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1 made, simple interest on actual damages in 

2 accordance with the requirements under 

3 subparagraph (A). 

4 ‘‘(ii) NO DUPLICATIVE AWARD.—A 

5 court may not award any damages under 

6 this subparagraph that are duplicative of 

7 damages awarded before the date of the 

8 award under this subparagraph in a sepa9 rate civil action pertaining to the same 

10 conduct and injured party. 

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

12 damages to a person in a civil action after 

13 the date of an award of damages under 

14 this subsection that would be duplicative of 

15 damages awarded to the Attorney General 

16 on behalf of the person shall direct that 

17 such damages shall first be paid by the At18 torney General from amounts in the Fund 

19 and, to the extent such damages are not 

20 fully paid from amounts in the Fund, shall 

21 be paid by the defendant. 

22 ‘‘(C) ANTITRUST CONSUMER DAMAGES

23 FUND.— 

24 ‘‘(i) IN GENERAL.—There is estab25 lished in the Treasury of the United States 


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1 a fund to be known as the ‘Antitrust Con2 sumer Damages Fund’ (in this subsection 

3 referred to as the ‘Fund’), which shall con4 sist of amounts deposited under clause (ii). 

5 ‘‘(ii) DEPOSITS AND AVAILABILITY.— 

6 Notwithstanding section 3302 of title 31, 

7 United States Code, any amounts received 

8 by the Attorney General under an award 

9 under this subsection— 

10 ‘‘(I) shall be deposited in the 

11 Fund; and 

12 ‘‘(II) shall be available to the At13 torney General, without further ap14 propriation, for distribution to persons 

15 in the United States harmed by the 

16 applicable violation of the Sherman 

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

18 ‘‘(iii) DEPOSITS INTO GENERAL

19 FUND.—Effective on the day after the date 

20 that is 10 years after the date on which an 

21 award is received under this paragraph, 

22 the unobligated balances in the Fund of 

23 amounts that were received under the 

24 award are rescinded and shall be deposited 

25 in the general fund of the Treasury. 


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1 ‘‘(2) DIVESTITURE ENFORCEMENT.—The Attor2 ney General may bring an action on behalf of the 

3 United States in any district court of the United 

4 States in the district in which the defendant resides 

5 or is found or has an agent, and may obtain injunc6 tive relief upon showing by a preponderance of the 

7 evidence that the defendant has 

8 ‘‘(A) violated a requirement of subsection 

9 (e); or 

10 ‘‘(B) undertaken a required divestiture 

11 that unnecessarily harms or threatens competi12 tion in any market. 

13 ‘‘(3) PRIVATE RIGHT OF ACTION.— 

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

15 harmed by a knowing violation of subsection (c) 

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

17 (as adjusted each year on January 1 by an 

18 amount equal to the percentage increase, if any, 

19 in the Consumer Price Index, as determined by 

20 the Department of Labor or its successor) in 

21 digital advertising revenue during the previous 

22 calendar year may bring a civil action in an ap23 propriate court to obtain injunctive relief, where 

24 appropriate, and recover damages in the 

25 amount of the greater of— 


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1 ‘‘(i) $1,000,000 for each month in 

2 which a violation of this Act occurred and 

3 reasonable attorney’s fees; or 

4 ‘‘(ii) actual damages and reasonable 

5 attorney’s fees. 

6 ‘‘(B) NO CLASS ACTION WAIVER.—No per7 son covered by this Act may require a class ac8 tion waiver for claims under this Act, including 

9 for arbitration. 

10 ‘‘(C) TIMING.—A civil action for a viola11 tion of subsection (b) may be brought at any 

12 time after the later of— 

13 ‘‘(i) the expiration of any applicable 

14 divestiture deadline; or 

15 ‘‘(ii) the expiration of the deadline in 

16 subsection (e)(1) if no filing has been 

17 made. 

18 ‘‘(e) DIVESTITURE.— 

19 ‘‘(1) FILING.—Any agreement or other docu20 ment setting out the terms of a required divestiture 

21 shall be filed with the Attorney General not later 

22 than the later of— 

23 ‘‘(A) the effective date; or 

24 ‘‘(B) the earlier of— 


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

2 an agreement making a required divesti3 ture under this Act is executed; or 

4 ‘‘(ii) 180 days after meeting the cri5 teria specified in any paragraph of sub6 section (b). 

7 ‘‘(2) ATTORNEY GENERAL REVIEW.—The At8 torney General shall approve a required divestiture 

9 upon a showing by the person making the divestiture 

10 that the terms of the divestiture, including the quali11 fications of any counter parties thereto, will not un12 necessarily harm or threaten competition in any 

13 market. 

14 ‘‘(3) TIMING.— 

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

16 shall grant or deny approval of a required di17 vestiture, unless agreed to by the parties, no 

18 later than the later of— 

19 ‘‘(i) 60 days after receipt of all infor20 mation obtained pursuant to subparagraph 

21 (5); or 

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

23 made under subparagraph (1). 


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

2 completed not later than the divestiture dead3 line. 

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

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

6 of enactment of this section, issue guidance on 

7 the divestiture process under this subsection 

8 and the certification requirement under sub9 section (c)(6); and 

10 ‘‘(B) update the guidance described in sub11 paragraph (A) as the Attorney General deter12 mines is appropriate. 

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

14 General may request or issue a civil investigative de15 mand under section 3 of the Antitrust Civil Process 

16 Act (15 U.S.C. 1312) for documents from any per17 son involved in a required divestiture to determine 

18 the competitive effects of the divestiture. 

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

20 section shall— 

21 ‘‘(1) prohibit a person from— 

22 ‘‘(A) selling their own inventory of adver23 tising space if— 

24 ‘‘(i) the inventory was not acquired 

25 solely for the purposes of resale, except to 


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1 monetize the person’s own content or intel2 lectual property; and 

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

4 third-party in the sale or purchase of ad5 vertising space, other than purchasing ad6 vertising space from that person; or 

7 ‘‘(B) buying inventory to market the prod8 ucts or services of the person; 

9 ‘‘(2) abridge or supersede any provision of or 

10 rules issued pursuant to section 7A; 

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

12 antitrust laws, entering into a joint venture or other 

13 collaboration to prevent harm from spam, fraud, or 

14 other forms of abuse in digital advertising; or 

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

16 such disclosure would violate a law of the United 

17 States or a foreign country.’’. 

Æ 


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