Senate Confirms Federal Trade Commission Nominee, Forecasts Digital Antitrust Battles

By a vote of 55-43, the Senate voted on Friday to confirm Jonathan Kanter as the Director of the Federal Trade Commission (FTC), which can oversee and investigate mergers and acquisitions of large tech companies.

Kanter, an avowed antitrust critic and a former partner at WilmerHale, will replace Michael Chasen, who was appointed to the post in May 2017 and is expected to step down later this month.

Many Americans remain concerned over the growing dominance of technology giants such as Amazon, Google, Facebook, and Microsoft, which have each come under fire for their business practices and privacy practices.

Indeed, the December 2017 merger of telecom firms AT&T and Time Warner raised concerns among consumer advocates that such a merger would lead to increased concentration of power in the hands of one company that would allow it to influence media content, especially news content.

“This is simply a case of crony capitalism. [Sen. John] Thune ought to recuse himself for participating in the confirmation vote, in which case this shouldn’t be a victory for mergers, it should be a defeat for crony capitalism,” Rebecca Buckwalter-Poza, associate director of Free Press’ Watchdog Program, told The Guardian.

On Feb. 15, the FTC voted 3-2 to approve the $85 billion merger. According to The Guardian, which was one of several media outlets to report on the commission’s vote, Thune, now a Republican, authored the item that was passed and did not disclose that he had previously worked for C.M. Beas, a public relations firm that represents Time Warner.

The commission said that antitrust concerns were outweighed by other benefits like increased competitive power in the digital distribution of content. It also noted that regulators already have an “unprecedented” record of reviewing large-scale, cross-industry mergers and said that more information was needed to assess any potential violations of antitrust laws.

Thune initially announced that he opposed the merger but refused to disclose his support for Kanter, stating that he was not talking about potential conflicts of interest. However, others believed that Thune’s “lack of disclosure about his legal and lobbying work represent an unprecedented conflict of interest and that his recusal would have been well in order had he not already voted on the deal.”

“Thune has been long-time supporter of the same ‘Big Tech’ positions of all the other commissioners,” Buckwalter-Poza told The Guardian. “He is now in a position to cast one vote over public interest. That’s simply not okay. He needs to recuse.”

Kanter has repeatedly urged the FTC to examine Internet and technology firms “from top to bottom” and warned that “technology is being restrained from what’s best for consumers,” according to Reuters.

Kanter has also said that the government is “waiting for the negative data on antitrust before taking action to regulate it.”

Kanter argued that Google and Facebook control around two-thirds of digital advertising dollars, creating a monopoly over internet search and reducing competition, which could ultimately hurt consumers.

He previously criticized Facebook for not paying platform publishers for their content, which he said increases the demand for their content, which in turn “drives prices up. In effect, it’s a form of radio-to-digital comparison shopping.”

In 2017, Kanter published a report in which he recommended new antitrust laws to oversee the presence of these big tech companies, whom he described as a “post-post-internet” global behemoth with “passionate groups of partisans” for and against their companies.

In the letter that he submitted to the FTC calling for the appointment of a “data law” expert to review its approach to technological changes, Kanter expressed concern that the FTC’s policies are not keeping up with the rapid pace of technological change and creating gaps in its enforcement efforts.

According to the report, Kanter believes there needs to be “directions and guidelines based on a full understanding of each trend and being receptive to suggestions that technology changes may impact the core objectives of the Commission and the interests of consumers.”

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