Antitrust Regulations: What Changes to Expect and How They Affect You

With big tech companies facing increasing pressure to avoid practices that stifle competition and potentially undermine the free market, antitrust policy has again risen to prominence.

For government affairs professionals, that translates to a greater need for training around antitrust compliance as well as staying abreast of proposed legislative changes. Read on for a better understanding of how antitrust laws may impact your organization.

Antitrust Laws: The Basics

Antitrust law is meant to protect the free market, benefit consumers, and prevent larger companies from abusing their power to shut out competition from smaller ones.

While antitrust law is complex, three of the four milestone antitrust acts that underpin all policy have existed for over 100 years. They aim to drive quality up, hold prices down, establish conditions for a resilient economy — and hold the powerful accountable.

The oldest of these is the Sherman Antitrust Act of 1890, which outlaws monopolies and establishes free competition. The Clayton Antitrust Act of 1914 defines unethical business practices, while the Federal Trade Commission Act of 1914 created the Federal Trade Commission as a key enforcer of antitrust policy and law. Another notable law was the Hart-Scott-Rodino Antitrust Improvements Act of 1976, which requires parties to report large transactions to government bodies for review.

The Justice Department (DOJ) and the Federal Trade Commission (FTC) are the two major entities that enforce antitrust laws and regulations. But the network of enforcers and regulators has broadened.

Companies caught violating laws can face fines, civil lawsuits, and criminal prosecution in addition to a loss of credibility.

The Landscape for Changes to Antitrust Laws

Any changes to antitrust legislation in the near future are likely to focus on big tech, says Keith N. Hylton, professor of law at Boston University.

“With that in mind, I still do not think we will see any antitrust legislation adopted [in 2023],” he says. “The problem is that antitrust involves many considerations and issues. It is hard to write an industry-specific antitrust law that doesn’t immediately affect many other industries.”

It’s a problem Congress has wrestled with for years. A 16-month investigation into the use of market power by Amazon, Apple, Facebook, and Google laid the groundwork for proposed changes, but lawmakers struggled to reach a consensus on the details.

The American Innovation and Choice Online Act was one such proposal. Aiming to strengthen consumer choice and curb “self-preferencing” of tech giants’ own products and services, the bill also targeted the anticompetitive use of data and proposed hefty fines for businesses found in violation. Then there was the Open App Markets Act, which would have allowed consumers to easier access third-party payment systems when purchasing smartphone apps and prevent tech giants from elevating their apps in searches.

But neither bill came to a full vote of the House or Senate. If an antitrust law becomes likely to pass, expect plenty of lobbying by interest groups accompanied by a litany of amendments and alterations, Hylton says.

Shifting Approaches to Antitrust Enforcement

So what’s different today? While antitrust laws remained fairly consistent for decades, smaller policy shifts and approaches to how those laws are enforced have changed.

During the pandemic, times of economic stress and uncertainty caused policymakers to consider ways to improve the standing of the American economy, with some arguing that pandemic-era issues like supply chain backups wouldn’t be such a severe problem if there was more enforcement of antitrust laws and regulations.

Tech platforms rose to prominence in enabling a hybrid workforce to accomplish tasks from anywhere. Large chunks of consumers’ everyday lives, from banking and shopping to school and health, depend on technology. And regulators and investigators are increasingly eyeing whether companies are using the data entrusted to them in ways that harm consumers, stifle competition, or hamper innovation.

“The Biden administration is pursuing a whole of government approach that seeks to promote competition across multiple government agencies that don’t always put competition front and center,” says Michael Carrier, a distinguished professor at Rutgers Law School. “Also, the heads of the antitrust agencies are pursuing a more aggressive approach than previous administrations have.”

In July 2021, the Biden administration issued an executive order that aimed to curb abuses of power in consolidated industries and update how policy is applied and enforced. Government agencies beyond the DOJ and FTC now find themselves drawn into more regulatory roles.

That was the case with the Transportation Department, which is set to block certain operating rights and start its own investigation into whether JetBlue Airways Corp.’s attempted takeover of Spirit Airlines Inc. is in the public interest. A similar dispute arose in the railroad industry with the Canadian Pacific-Kansas City Southern merger.

The EO also mentions concerns with other industries, including healthcare, agriculture, and small newspapers. In the federal government, there is a push among individual agencies to remove barriers for small businesses to do business with the government.

Why Antitrust Matters to Government Affairs Professionals

Knowledge of antitrust policy and compliance is crucial for government affairs professionals, given that the current administration has made clear they want to use competition to improve the lives of Americans in essentially every industry.

Antitrust as a broader approach to creating an environment for healthy competition brings in a host of issues. Antitrust is about mergers and acquisitions and price points. But it also covers more subtle areas, including paying workers a living wage and avoiding policies that may disproportionately affect minorities when market competition is squelched.

More recently, the FTC renewed its focus on international cooperation aimed at taking a holistic approach to big tech companies that operate in multiple countries, including those more likely to place big U.S.-based tech companies under scrutiny.

When it comes to antitrust compliance, government affairs professionals should be aware that there is broad immunity for petitioning activity, so rival organizations can lawfully come together to petition and lobby for issues on the Hill. But there are still lines that shouldn’t be crossed because they might violate antitrust laws. Government affairs professionals shouldn’t share too much information with other organizations about their independent business activities, for example, or try to coordinate business activities. “Those are improper activities that wouldn’t be covered by that petitioning immunity,” says Adam Biegel, co-chair of the antitrust team and partner at Alston & Bird. Antitrust compliance training is offered in many companies to provide employees with an understanding of acceptable corporate practices.

Because antitrust is such a complex issue, organizations must stay on top of every possible change that could affect compliance ahead of time. FiscalNote’s solutions allow government affairs professionals to be automatically alerted of any change in existing or upcoming policy and regulations, and then connect them with the right stakeholders to make sure their organizations’ interests are protected.