McSweeny: Antitrust Enforcers Can Do More to Foster Digital Competition
Antitrust enforcers can do more to police digital market competition, with one option being FTC examination of serial acquisitions by dominant firms, outgoing Commissioner Terrell McSweeny reported this week. With attorney adviser Brian O’Dea as co-author, McSweeny said the agency…
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could do such examinations of defensive acquisitions as a course of conduct under FTC Act Section 5 “unfair method of competition” authority. She acknowledged arguments against taking a more aggressive approach, citing Herbert Hovenkamp and Phillip Areeda's assessment that dominant firms habitually buying rivals can actually add incentive for investors to enter markets. She also cited economist Carl Shapiro, who said competition and innovation might increase if the DOJ and FTC “could selectively prevent mergers that serve to solidify the positions of leading incumbent firms, including dominant technology firms, by eliminating future challengers.” While outside the realm of antitrust, McSweeny suggested another way to increase competition and improve services in digital markets is to give consumers more control over data: “Regulations permitting consumers to withdraw their data in a usable format when they want to use a different service may also lower barriers to entry for less data-rich innovators.”