Technology policy is a growing issue for the Congress, especially since it is to the economy and to our national security what oil was 20 years. Congress has a love-hate relationship with tech: love them for their innovation, jobs, and international competitiveness, and hate them for their size, bias and perceived hubris.
Enter antitrust: a growing area of concern for both Democrats and Republicans. Last month, Democrats on the House Judiciary Antitrust Subcommittee released a 400-page report after a 16-month investigation into Amazon, Apple, Facebook, and Google. These platform companies have caught the ire of both Democrats and Republicans, though for different reasons. The report recommends sweeping reforms to antitrust law—policy makers have the platforms in mind, but the recommendations would apply to all businesses.
No Republicans joined the majority’s recommendations, but Rep. Ken Buck of Colorado and three Republican colleagues released their own report signaling willingness to explore changes to some facets of antitrust law, including heightened standards for merger review. This is born of Republican frustration with the platforms’ content moderation policies–policies that Republicans think are biased against them.
The House could move antitrust reform legislation next year, but it’s very unlikely that a Republican-controlled Senate would take it up.
Senator Amy Klobuchar (D-MN) is the Ranking Member of the Antitrust Subcommittee. She’s historically been a traditionalist on antitrust matters, but she has introduced several bills that would expand antitrust law. Antitrust Subcommittee Chairman Mike Lee is more traditional in affirming the Borkean consumer welfare standard. It’s worth noting that some states, including New York, have introduced their own bills that would expand the reach of antitrust law and enhance penalties.
A related issue to watch: Republicans would like to reform or repeal Section 230 of the Communications Decency Act, which provides a liability shield for social media companies for content that is shared through their platforms. Democrats don’t share that view, so it’s very likely that nothing passes the Congress.
In terms of intellectual property, the outcome of the Arthrex case, now pending in the Supreme Court, could affect the validity of Patent Trial and Appeal Board proceedings created by the 2011 American Invents Act, and require congressional action. Senator Coons and other Members are also expected to reintroduce bills to reform the Patent Trial and Appeal Board. Senator Tillis, likely to continue as Chair of the IP Subcommittee, has shown great interest in tackling subject matter patentability, commonly referred to as Section 101.
The COVID pandemic has also drawn renewed attention to U.S. broadband policy. In March, Congress increased E-Rate funding to subsidize broadband to rural and low-income households early in the pandemic, but access to broadband speeds, particularly in rural and tribal areas, remains a significant concern in the age of remote work, distance learning, and telemedicine.
Congress is certain to revisit legislation to expand broadband access. Multiple bills were introduced this Congress that would have invested tens of billions of dollars to deploy fiber broadband to underserved areas, and a significant broadband program will likely be part of a larger package early next Congress. The accelerated deployment of 5G wireless is also a priority for Congress and the Administration. The FCC will continue its work to make more spectrum available for 5G, while Congress and the Administration will continue to explore ways to promote the deployment of 5G networks.
This year’s National Defense Authorization Act will likely include the USA Telecommunications Act, which creates an R&D fund for development of open-RAN networks. Promoting the development of alternatives to foreign-made wireless infrastructure will remain a bipartisan priority.
States are also active on technology issues. California voters approved Proposition 24, an initiative aimed at expanding consumer privacy rights. In Massachusetts, voters overwhelmingly passed an updated “Right to Repair” measure that would require car companies to provide owners access to the mechanical data collected wirelessly from their vehicles. Altogether, we can expect a full plate of significant public policy issues impacting the tech sector in the new year.