Title: Trust-Busting for the Twenty-First Century Act
Policy area: Commerce

Summary:
Trust-Busting for the Twenty-First Century Act
This bill makes various changes to the federal antitrust statutes and places restrictions on acquisitions involving certain dominant digital firms.
First, the bill revises the evidentiary standards for establishing an illegal monopoly. Under the bill, if a plaintiff establishes the existence of substantial market power or the detrimental effects of particular practices, then the plaintiff need not further establish the scope of the relevant market or the share of the market controlled by the defendant. Further, to prove that the procompetitive effects justify a defendant's conduct the defendant must show by clear and convincing evidence that (1) the procompetitive effects of the conduct outweigh the anticompetitive effects, and (2) the defendant could not obtain substantially similar procompetitive effects through commercially reasonable alternatives. In the case of a violation, courts must order the disgorgement of all profits earned as a result of the conduct.
Next, the bill generally prohibits acquisitions by companies with a market capitalization exceeding $100 billion where the effect of the acquisition may be to lessen competition.
Finally, the Federal Trade Commission may designate as a dominant digital firm a website or online service that the commission determines possesses dominant market power based on specified factors. Acquisitions by such firms in excess of $1 million are presumed unfair trade practices under the bill. Further, a dominant digital firm that provides search functionality must disclose to users any search results are that are promoted or demoted based on whether the search result is affiliated or not affiliated with the firm.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1074 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 1074

   To amend the Sherman Act, the Clayton Act, and the Federal Trade 
  Commission Act to promote competition in the United States, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 12, 2021

  Mr. Hawley introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Sherman Act, the Clayton Act, and the Federal Trade 
  Commission Act to promote competition in the United States, and for 
                            other purposes.

    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 ``Trust-Busting for the Twenty-First 
Century Act''.

SEC. 2. SHERMAN ACT AMENDMENTS.

    The Sherman Act (15 U.S.C. 1 et seq.) is amended--
            (1) in section 2 (15 U.S.C. 2)--
                    (A) by striking ``Every'' and inserting ``(a) 
                Every''; and
                    (B) by adding at the end the following:
    ``(b)(1) In any case alleging a violation of this section or 
section 1 in which a plaintiff establishes by a preponderance of the 
evidence (including direct evidence) the existence of substantial 
market power or the anticompetitive or otherwise detrimental effects of 
particular practices, a plaintiff need neither define the scope of a 
relevant market nor establish the share of such a market controlled by 
the defendant.
    ``(2) In any case alleging a violation of this section or section 1 
in which the defendant relies on alleged procompetitive effects to 
justify the conduct of the defendant, the defendant shall establish by 
clear and convincing evidence that--
            ``(A) the procompetitive effects of the conduct clearly 
        outweigh the anticompetitive effects of the conduct; and
            ``(B) the defendant could not obtain substantially similar 
        procompetitive effects through commercially reasonable 
        alternatives that would involve materially lower competitive 
        risks.''; and
            (2) in section 4 (15 U.S.C. 4)--
                    (A) by striking ``The several'' and inserting ``(a) 
                The several''; and
                    (B) by adding at the end the following:
    ``(b) In any action brought by the United States or the Federal 
Trade Commission alleging a violation of this Act, if the United States 
or the Federal Trade Commission establishes such a violation, the court 
shall order disgorgement of all profits earned by the defendant as a 
result of the conduct constituting that violation, except upon a 
showing of extraordinary good cause.
    ``(c) It is the policy of the United States that the principal 
standard for evaluating the permissibility of practices under this Act 
is the protection of economic competition within the United States.''.

SEC. 3. CLAYTON ACT AMENDMENTS.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended--
            (1) in the first section (15 U.S.C. 12), by adding at the 
        end the following:
    ``(c) It is the policy of the United States that the principal 
standard for evaluating the permissibility of practices under this Act 
is the protection of economic competition within the United States.'';
            (2) in section 7 (15 U.S.C. 18), by adding at the end the 
        following:
    ``No person with a market capitalization exceeding $100,000,000,000 
(as adjusted and published for each fiscal year beginning after 
September 30, 2022, in the same manner as provided in section 8(a)(5) 
to reflect the percentage change in the gross national product for such 
fiscal year compared to the gross national product for the year ending 
September 30, 2021) shall acquire, directly or indirectly, the whole or 
any part of the stock or other share capital or the whole or any part 
of the assets of 1 or more persons engaged in commerce or in any 
activity affecting commerce, where in any line of commerce or in any 
activity affecting commerce in any section of the country, the effect 
of such acquisition, of such stocks or assets, or of the use of such 
stock by the voting or granting of proxies or otherwise, may be to 
lessen competition in any way.
    ``Where a preponderance of the evidence (including direct evidence) 
is adduced to demonstrate that the effect of an acquisition may be 
substantially to lessen competition or to tend to create a monopoly, a 
plaintiff need neither establish market shares nor the concentration of 
any particular market.
    ``No acquisition shall be presumed not to substantially lessen 
competition or tend to create a monopoly only because the parties to 
the acquisition do not compete directly against one another at the time 
of the acquisition.''; and
            (3) in section 7a(a) (15 U.S.C. 18a(a)), in the 
        undesignated matter following paragraph (2)(B)(ii)(III), by 
        adding at the end the following: ``In the case of any 
        transaction involving a person, partnership, or corporation 
        designated as a dominant digital firm under section 10A of the 
        Federal Trade Commission Act, the person, partnership, or 
        corporation shall file notification as required by this 
        section.''.

SEC. 4. RESTRICTIONS ON DOMINANT DIGITAL FIRMS.

    The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended 
by inserting after section 10 the following:

``SEC. 10A. RESTRICTIONS ON DOMINANT DIGITAL FIRMS.

    ``(a) Definitions.--In this section:
            ``(1) Dominant digital firm.--The term `dominant digital 
        firm' means a person, partnership, or corporation that--
                    ``(A) provides a website or service accessible 
                through the internet; and
                    ``(B) possesses dominant market power in any market 
                related to that website or service.
            ``(2) Search functionality.--The term `search 
        functionality' means any feature or aspect of a website or 
        service accessible through the internet that allows a user to 
        input alphanumeric data in order to retrieve and display a 
        ranked list of relevant results.
    ``(b) Designation as a Dominant Digital Firm.--
            ``(1) In general.--The Commission shall have power to 
        designate a person, partnership, or corporation as a dominant 
        digital firm.
            ``(2) Factors to be considered.--In determining whether a 
        person, partnership, or corporation possesses dominant market 
        power under paragraph (1), the Commission shall consider 
        factors including--
                    ``(A) dominance of the firm in other markets and 
                durability of the dominance;
                    ``(B) the extent to which the firm benefits from 
                government contracts or other privileges;
                    ``(C) exclusivity agreements entered into by the 
                firm;
                    ``(D) network effects; and
                    ``(E) any ownership stake of the firm in other 
                entities within the supply chain of the firm.
            ``(3) Investigative authority.--In determining whether to 
        designate a person, partnership, or corporation as a dominant 
        digital firm under paragraph (1), the Commission shall have 
        power to issue investigative demands.
    ``(c) Requirements.--
            ``(1) In general.--Any designation made by the Commission 
        under subsection (b) shall be preceded by a notice and comment 
        period in accordance with section 553 of title 5, United States 
        Code, except that the required publication and service of any 
        designation by the Commission may be made not less than 15 days 
        before the effective date of the designation.
            ``(2) Judicial review.--Any designation made by the 
        Commission under subsection (b) shall be subject to judicial 
        review pursuant to section 706 of title 5, United States Code.
    ``(d) Presumption as Unfair or Deceptive Act or Practice.--Any 
acquisition by a person, partnership, or corporation designated as a 
dominant digital firm under this section, direct or indirect, of the 
whole or any part of the stock or other share capital or the whole or 
any part of the assets of 1 or more persons engaged in commerce or in 
any activity affecting commerce, where such acquisition exceeds 
$1,000,000 (as adjusted and published for each fiscal year beginning 
after September 30, 2022, in the same manner as provided in section 
8(a)(5) of the Clayton Act to reflect the percentage change in the 
gross national product for such fiscal year compared to the gross 
national product for the year ending September 30, 2021) shall be 
presumed to be a unfair or deceptive act or practice.
    ``(e) Unfair or Deceptive Act or Practice.--It shall be an unfair 
or deceptive act or practice if a person, partnership, or corporation 
designated as a dominant digital firm under this section--
            ``(1) provides search functionality;
            ``(2) promotes or demotes particular search results, on the 
        basis of whether those results are affiliated or not affiliated 
        with the dominant digital firm; and
            ``(3) does not disclose such affiliation to users of the 
        search functionality.''.
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