| Hey, it's Josh. As a general rule, new appointments to the Federal Trade Commission don't attract much attention. But the Senate confirmation Tuesday of Lina Khan—and the subsequent announcement that she'd be the agency's chair—is proving to be an exception. The FTC will be led by the perhaps the single person most closely associated with an aggressive approach to antitrust policy. For some, it was a cause for jubilation; for others, dread. Khan's elevation signals a sea change in tech's relationship with the U.S. government. As a candidate, Joe Biden didn't excite opponents of Big Tech power. And his administration's recent lack of progress making key appointments to the Justice Department and the Federal Communications Commission inspired fervent hand-wringing. But with Khan's appointment, which attracted significant Republican support, the anti-corporate crowd now appears to have the upper hand. In a statement, the Information Technology & Innovation Foundation, a public policy group whose funders include major tech companies, acknowledged that bipartisan opinion was turning against it. "Antitrust populism is inevitably going to become the governmental policy stance," wrote Aurelien Portuese, the group's director of antitrust and innovation policy, predicting it would "cause lasting self-inflicted damage that benefits foreign, less meritorious rivals." Khan can take a lot of the credit for laying the intellectual groundwork for this shift. Four years ago, while still a law student, she published a long law review article making the case that Amazon.com Inc. was a dangerous monopolist whose predatory behavior was going unaddressed by the current antitrust approach. Later, as a lawyer working for the Democrats in the House of Representatives, she played a key role in producing the sweeping report on antitrust issues in the technology industry that is serving as the basis for a series of recently introduced bills addressing corporate power. There are a few major planks to Khan's critique. Amazon, she says, has used predatory pricing, charging unsustainably low prices because the company knows it can lose money for longer than its smaller competitors. Large tech companies also operate platforms like Amazon's marketplace and Apple's App Store that compete with the businesses relying on them to reach customers, while amassing data that further entrenches their advantages. Silicon Valley's largest companies also squelch competitive threats from smaller companies by buying them, she has said. Tech companies have repeatedly pushed back against such claims. From her new post, Khan has significant power to transform her critiques into the basis for federal policy and enforcement. The FTC has been roundly criticized as ineffectual and under-resourced. But Ron Knox, a senior researcher at the Institute for Local Self-Reliance, an advocacy group supporting stronger anti-monopoly policies, calls the FTC a "sleeping giant" and, like other allies, thinks Khan can use it to push through sweeping changes. "Lina understands the vast potential of the FTC to really reshape the economy, to de-concentrate markets and to democratize major parts of the economy," Knox says. There will be limits to Khan's influence. There are currently five sitting commissioners, but Democratic Commissioner Rohit Chopra is slated to leave soon, which could leave the FTC deadlocked at 2-2 on issues for which there's no consensus. The federal courts have also been reshaped by Trump-era appointees, and are generally far more skeptical toward regulation and activism from federal agencies than Khan and other antitrust activists, serving as a potential counterweight. Still, Khan will likely be inclined to push the FTC to do far more than it has in recent years. This could mean pursuing lawsuits against Amazon and other companies, or re-examining mergers it didn't initially challenge. Khan could also press for new rules prohibiting certain types of anti-competitive behaviors, something she has advocated in the past. Doing so would be a significant expansion of the FTC's operations, and could be controversial, says Spencer Waller, the director of the Institute for Consumer Antitrust Studies at Loyola University Chicago. But he'd like to see the commission give it a shot. Says Waller: "There's nothing saying they can't." —Joshua Brustein |
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