FTC Testifies before House Judiciary Subcommittee On Competition Enforcement and Policy, Including in Technology Markets

In testimony before the House Subcommittee on Antitrust, Commercial and Administrative Law, the Federal Trade Commission described its enforcement and policy work to promote competition in U.S. markets, including high-priority efforts to address technology markets.

Testifying on behalf of the FTC, Chairman Joe Simons highlighted recent Commission enforcement actions to stop anticompetitive mergers and conduct.

With respect to technology markets, the testimony states, the Commission has prioritized efforts to monitor, study, and, where necessary, bring enforcement actions to maintain competition. This year, the FTC’s Bureau of Competition announced the creation of a Technology Enforcement Division to monitor competition and recommend enforcement action when warranted.

“Given the importance of these markets to consumers and to the economy, the Commission is committed to vigorous enforcement of the antitrust laws to promote current and future competition in critical technology markets,” the testimony states.

The testimony recounts the monopolization case that the Commission brought in April 2019 against the health information technology company Surescripts LLC. The FTC’s complaint alleges that Surescripts employed both vertical and horizontal restraints to maintain its dominant position in two electronic prescription markets: routing and eligibility.

Current law provides the Commission with several potential avenues to counter anticompetitive conduct by large technology firms that seek to thwart nascent and potential threats by acquisition or other means, the testimony states. The Commission pays particularly close attention when an industry leader seeks to acquire an up-and-coming competitor that is changing customer expectations and gaining sales. Under certain circumstances, the acquisition of an emerging or nascent competitor may constitute anticompetitive conduct that illegally maintains a monopoly position, the testimony states.

The Commission also has relied on a theory of potential competition to require relief in numerous pharmaceutical markets where one firm had a product on the market while the other merging firm had a product in development that would likely compete in the near future. The testimony notes, however, that future competition cases pose challenges in weighing and assessing evidence, since predictions about entry can often be called into question.

The testimony also notes the FTC’s engagement with international counterparts and organizations, and its robust research and policy function. As part of its commitment to examining the effectiveness of its antitrust enforcement efforts, the Commission has held a series of hearings on competition and consumer protection topics over the last year, the testimony states. Several panels discussed issues relating to technology and the digital economy, including the acquisition of potential or nascent competitors in the digital marketplace.

The Commission voted 5-0 to approve the testimony and include it in the formal record.

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