Platform Competition and Opportunity Act of 2021
Bill: H.R.3826 | Sponsor: Rep. Jeffries, Hakeem S. (D-NY)
Policy area: Commerce

Summary:
Platform Competition and Opportunity Act of 2021
This bill generally prohibits operators of covered platforms from acquiring the stock or other share capital or the assets of another person engaged in commerce or in any activity affecting commerce.
Covered platforms are online platforms that (1) have at least 50 million U.S.-based monthly active users or at least 100,000 U.S.-based monthly active business users, (2) are owned or controlled by a person with net annual sales or a market capitalization greater than $600 billion, and (3) are critical trading partners for the sale or provision of any product or service offered on or directly related to the platform.
The Federal Trade Commission or the Department of Justice must designate whether an entity is a covered platform, and both must carry out enforcement activities.
The bill provides for any person (other than a foreign state and any instrumentality thereof) who is injured by an activity forbidden under the bill to recover triple damages. (A foreign state may only recover actual damages.)
Further, the bill specifies the U.S. Court of Appeals for the District of Columbia Circuit as the judicial venue for a covered platform's appeals related to (1) the designation as a covered platform, (2) other administrative and enforcement proceedings, or (3) a final order issued in any district court.

To promote competition and economic opportunity in digital markets by 
establishing that certain acquisitions by dominant online platforms are 
                               unlawful.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Platform Competition and Opportunity 
Act of 2021''.

SEC. 2. UNLAWFUL ACQUISITIONS.

    (a) Violation.--It shall be unlawful for a covered platform 
operator to acquire directly or indirectly--
            (1) the whole or any part of the stock or other share 
        capital of another person engaged in commerce or in any 
        activity or affecting commerce; or
            (2) the whole or any part of the assets of another person 
        engaged in commerce or in any activity affecting commerce.
    (b) Exclusion.--An acquisition shall not be unlawful under 
subsection (a) if the acquiring covered platform operator demonstrates 
by clear and convincing evidence that--
            (1) the acquisition is a transaction that is described in 
        section 7A(c) of the Clayton Act; or
            (2) the acquired assets or the issuer of the acquired stock 
        do not--
                    (A) compete with the covered platform or with the 
                covered platform operator for the sale or provision of 
                any product or service;
                    (B) constitute nascent or potential competition to 
                the covered platform or the covered platform operator 
                for the sale or provision of any product or service;
                    (C) enhance or increase the covered platform's or 
                the covered platform operator's market position with 
                respect to the sale or provision of any product or 
                service offered on or directly related to the covered 
                platform; or
                    (D) enhance or increase the covered platform's or 
                covered platform operator's ability to maintain its 
                market position with respect to the sale or provision 
                of any product or service offered on or directly 
                related to the covered platform.
    (c) User Attention.--For purposes of this Act, competition, nascent 
competition, or potential competition for ``the sale or provision of 
any product or service'' includes competition for a user's attention.
    (d) Role of Data.--For purposes of this Act, an acquisition that 
results in access to additional data may, without more, enhance, 
increase, or maintain a covered platform's market position.

SEC. 3. DEFINITIONS.

    (a) Antitrust Laws.--The term ``antitrust laws'' has the meaning 
given the term in subsection (a) of section 1 of the Clayton Act (15 
U.S.C. 12).
    (b) Commission.--The term ``Commission'' means the Federal Trade 
Commission.
    (c) Control.--The term ``control'' with respect to a person means--
            (1) holding 25 percent or more of the stock of the person;
            (2) having the right to 25 percent or more of the profits 
        of the person;
            (3) having the right to 25 percent or more of the assets of 
        the person, in the event of the person's dissolution;
            (4) if the person is a corporation, having the power to 
        designate 25 percent or more of the directors of the person;
            (5) if the person is a trust, having the power to designate 
        25 percent or more of the trustees; or
            (6) otherwise exercises substantial control over the 
        person.
    (d) Covered Platform.--The term ``covered platform'' means an 
online platform--
            (1) that has been designated as a ``covered platform'' 
        under section 4(a); or
            (2) that--
                    (A) at the time of the Commission's or the 
                Department of Justice's designation under section 2(d), 
                or any of the twelve months preceding that time, or in 
                any of the 12 months preceding the filing of a 
                complaint for an alleged violation of this Act--
                            (i) has at least 50,000,000 United States-
                        based monthly active users on the online 
                        platform; or
                            (ii) has at least 100,000 United States-
                        based monthly active business users on the 
                        platform;
                    (B) is owned or controlled by a person with net 
                annual sales, or a market capitalization greater than 
                $600,000,000,000, adjusted for inflation on the basis 
                of the Consumer Price Index, at the time of the 
                Commission's or the Department of Justice's designation 
                under section 4(a) or any of the two years preceding 
                that time, or at any time in the 2 years preceding the 
                filing of a complaint for an alleged violation of this 
                Act; and
                    (C) is a critical trading partner for the sale or 
                provision of any product or service offered on or 
                directly related to the online platform.
    (e) Covered Platform Operator.--The term ``covered platform 
operator'' means a person that, directly or indirectly, owns or 
controls a covered platform.
    (f) Critical Trading Partner.--The term ``critical trading 
partner'' means an entity that has the ability to restrict or impede--
            (1) the access of a business user to its users or 
        customers; or
            (2) the access of a business user to a tool or service that 
        needs to effectively serve its users or customers.
    (g) Business User.--The term ``business user'' means a person that 
utilizes or plans to utilize the covered platform for the sale or 
provision of products or services.
    (h) Online Platform.--The term ``online platform'' means a website, 
online or mobile application operating system, digital assistant, or 
online service that--
            (1) enables a user to generate content that can be viewed 
        by other users on the platform or to interact with other 
        content on the platform;
            (2) facilitates the offering, sale, purchase, payment, or 
        shipping of goods or services, including software applications, 
        between and among consumers or businesses not controlled by the 
        platform; or
            (3) enables user searches or queries that access or display 
        a large volume of information.
    (i) Person.--The term ``person'' has the meaning given the term in 
subsection (a) of section 1 of the Clayton Act (15 U.S.C. 12).

SEC. 4. IMPLEMENTATION.

    (a) Covered Platform Designation.--
            (1) The Federal Trade Commission or Department of Justice 
        shall designate whether an entity is a covered platform for the 
        purpose of implementing and enforcing this Act. Such 
        designation shall--
                    (A) be based on a finding that the criteria set 
                forth in section 3(d)(2)(A)-(C) are met;
                    (B) be issued in writing and published in the 
                Federal Register; and
                    (C) will apply for 10 years from its issuance 
                regardless of whether there is a change in control or 
                ownership over the covered platform unless the 
                Commission or the Department of Justice removes the 
                designation pursuant to subsection (b).
    (b) Removal of Covered Platform Designation.--The Commission and 
the Department of Justice shall--
            (1) consider whether its designation of a covered platform 
        pursuant to subsection (a) should be removed prior to the 
        expiration of the 10-year period if the covered platform 
        operator files a request with the Commission or the Department 
        of Justice, which shows that the online platform is no longer a 
        critical trading partner;
            (2) determine whether to grant a request submitted under 
        paragraph 1 not later than 120 days after the date of the 
        filing of such request; and
            (3) obtain the concurrence of the Commission or the 
        Department of Justice, as appropriate, before granting a 
        request submitted under paragraph (1).

SEC. 5. ENFORCEMENT.

    (a) Enforcement Proceeding.--The Commission, Department of Justice, 
and any attorney general of a State subject to the requirements in 
subsection (d) shall enforce this Act in the same manner, by the same 
means, and with the same jurisdiction, powers, and duties as though all 
applicable terms and provisions of the Federal Trade Commission Act (15 
U.S.C. 41 et seq.) or the Clayton Act (15 U.S.C. 12 et seq.), as 
appropriate, were incorporated into and made a part of this Act.
    (b) Unfair Methods of Competition.--A violation of this Act shall 
also constitute an unfair method of competition under section 5 of the 
Federal Trade Commission Act (15 U.S.C. 5).
    (c) Commission Independent Litigation Authority.--If the Commission 
has reason to believe that a covered platform violated this Act, the 
Commission may commence a civil action, in its own name by any of its 
attorneys designated by it for such purpose, to recover a civil penalty 
and seek other appropriate relief in a district court of the United 
States against the covered platform operator.
    (d) Parens Patriae.--Any attorney general of a State may bring a 
civil action in the name of such State for a violation of this Act as 
parens patriae on behalf of natural persons residing in such State, in 
any district court of the United States having jurisdiction of the 
defendant, and may secure any form of relief provided for in this 
section.

SEC. 6. ENFORCEMENT GUIDELINES.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Commission and the Assistant Attorney General of the 
Antitrust Division shall jointly issue guidelines outlining policies 
and practices, relating to agency enforcement of this Act, with the 
goal of promoting transparency and deterring violations.
    (b) Updates.--The Commission and the Assistant Attorney General of 
the Antitrust Division shall update the joint guidelines issued under 
subsection (a), as needed to reflect current agency policies and 
practices, but not less frequently than once every 4 years beginning on 
the date of enactment of this Act.
    (c) Operation.--The Joint Guidelines issued under this section do 
not confer any rights upon any person, State, or locality, nor shall 
operate to bind the Commission, Department of Justice, or any person, 
State, or locality to the approach recommended in such Guidelines.

SEC. 7. SUITS BY PERSONS INJURED.

    (a) In General.--Except as provided in subsection (b), any person 
who shall be injured in his business or property by reason of anything 
forbidden in this Act sue therefor in any district court of the United 
States in the district in which the defendant resides or is found or 
has an agent, without respect to the amount in controversy, and shall 
recover threefold the damages by him sustained, and the cost of suit, 
including a reasonable attorney's fee. The court may award under this 
section, pursuant to a motion by such person promptly made, simple 
interest on actual damages for the period beginning on the date of 
service of such person's pleading setting forth a claim under the 
antitrust laws and ending on the date of judgment, or for any shorter 
period therein, if the court finds that the award of such interest for 
such period is just in the circumstances. In determining whether an 
award of interest under this section for any period is just in the 
circumstances, the court shall consider only--
            (1) whether such person or the opposing party, or either 
        party's representative, made motions or asserted claims or 
        defenses so lacking in merit as to show that such party or 
        representative acted intentionally for delay, or otherwise 
        acted in bad faith;
            (2) whether, in the course of the action involved, such 
        person or the opposing party, or either party's representative, 
        violated any applicable rule, statute, or court order providing 
        for sanctions for dilatory behavior or otherwise providing for 
        expeditious proceedings; and
            (3) whether such person or the opposing party, or either 
        party's representative, engaged in conduct primarily for the 
        purpose of delaying the litigation or increasing the cost 
        thereof.
    (b) Amount of Damages Payable to Foreign States and 
Instrumentalities of Foreign States.--
            (1) Except as provided in paragraph (2), any person who is 
        a foreign state may not recover under subsection (a) an amount 
        in excess of the actual damages sustained by it and the cost of 
        suit, including a reasonable attorney's fee.
            (2) Paragraph (1) shall not apply to a foreign state if--
                    (A) such foreign state would be denied, under 
                section 1605(a)(2) of title 28, United States Code, 
                immunity in a case in which the action is based upon a 
                commercial activity, or an act, that is the subject 
                matter of its claim under this section;
                    (B) such foreign state waives all defenses based 
                upon or arising out of its status as a foreign state, 
                to any claims brought against it in the same action;
                    (C) such foreign state engages primarily in 
                commercial activities; and
                    (D) such foreign state does not function, with 
                respect to the commercial activity, or the act, that is 
                the subject matter of its claim under this section as a 
                procurement entity for itself or for another foreign 
                state.

SEC. 8. JUDICIAL REVIEW.

    (a) In General.--Any party that is subject to a covered platform 
designation pursuant to section 4(a) of this Act, a decision in 
response to a request to remove a covered platform designation pursuant 
to section 4(b), a final order issued in any district court, or a final 
order of the Commission issued in an administrative adjudicative 
proceeding may within 30 days of the issuance of such designation, 
decision, or order, petition for review of such designation or order in 
the United States Court of Appeals for the District of Columbia 
Circuit.
    (b) Treatment of Findings.--In a proceeding for judicial review of 
a covered platform designation pursuant to section 4(a) of this Act or 
a final order of the Commission, the findings of the Commission or the 
Department of Justice as to the facts, if supported by evidence, shall 
be conclusive.
    (c) Injunctive Relief.--Any person, firm, corporation, or 
association shall be entitled to sue for and have injunctive relief, in 
any court of the United States having jurisdiction over the parties, 
against threatened loss or damage by a violation of this Act, when and 
under the same conditions and principles as injunctive relief against 
threatened conduct that will cause loss or damage is granted by courts 
of equity, under the rules governing such proceedings, and upon the 
execution of proper bond against damages for an injunction 
improvidently granted and a showing that the danger of irreparable loss 
or damage is immediate, a preliminary injunction may issue: Provided, 
That nothing herein contained shall be construed to entitle any person, 
firm, corporation, or association, except the United States, to bring 
suit for injunctive relief against any common carrier subject to the 
jurisdiction of the Surface Transportation Board under subtitle IV of 
title 49. In any action under this section in which the plaintiff 
substantially prevails, the court shall award the cost of suit, 
including a reasonable attorney's fee, to such plaintiff.

SEC. 9. RULES OF CONSTRUCTION.

     Nothing in this Act shall be construed to limit any authority of 
the Attorney General or the Federal Trade Commission under the 
antitrust laws, the Federal Trade Commission Act (15 U.S.C. 45), or any 
other provision of law or to limit the application of any law.

SEC. 10. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act 
and of the amendments made by this Act, and the application of the 
remaining provisions of this Act and amendments to any person or 
circumstance shall not be affected.
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