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Protocol | Policy

The 8 ways Biden’s competition order could shake up Big Tech

Right to repair, net neutrality and even hearing aids made it into the sweeping White House order on competition.

President Joe Biden speaking at a podium, flanked by US flags

President Joe Biden's sweeping competition order is his latest contribution to the new era of antitrust.

Photo: Alex Edelman/CNP/Bloomberg/Getty Images

The White House finished out the week by announcing a sweeping order on competition, aiming to boost enforcement against tech, push back on widespread consolidation across sectors and empower workers.

The order is President Joe Biden's latest contribution to the new era of antitrust, a strong rebuke of what he called the "failed" consensus that ruled in Washington and guided his predecessors since the Reagan administration.

"We're now 40 years into the experiment of letting giant corporations accumulate more and more power," he said at the order's signing. "What have we gotten from it? Less growth. Weak investment. Fewer small businesses. Too many Americans who feel left behind. Too many people are poorer than their parents."

No surprise then that it's a doozy, with 72 provisions and a summary fact sheet running more than 3,500 words. From net neutrality and data rules to hearing aids, here are the biggest provisions for tech:

The tech section itself

The order isn't subtle about where the hammer should come down: It explicitly outlines a policy that enforcement should focus on labor, agriculture, healthcare — and tech. It also goes on to lay out several more provisions related specifically to internet service, tech generally and fintech.

Net neutrality is back, and then some

Washington's on-again, off-again relationship with the idea that internet providers shouldn't block, slow or charge to prioritize particular content is back: The order encourages the Federal Communications Commission to revive the Obama-era rules on net neutrality that the FCC reversed under the Trump administration. Biden also wants landlords to butt out of their tenants' choice of ISPs by banning exclusivity deals that can artificially constrain competition in a building. He'd also like to require reports to the FCC about prices for internet service and to stomp out high early termination fees.

Although Biden appoints the FCC's commissioners, it is an independent agency, which is why he has to resort to nudging and hoping, as Obama did before him. (Trump similarly phrased his now-reversed Sec. 230 order as an indirect request to the FCC.) Biden has also failed so far to name a fifth commissioner to the agency, which would give the Democrats a 3–2 majority almost certainly needed to put any of these ideas into place, although several of them are longtime Democratic priorities and Jessica Rosenworcel, the acting FCC chair, said she welcomed the order.

Repair that phone (or tractor)

The order asks the Federal Trade Commission to issue rules boosting consumers' rights to repair devices and equipment themselves or at third-party repair shops. Like the FCC, the FTC operates independently from the White House, but the new chair Biden recently designated, Lina Khan, is already eyeing a big swing at tech. A recent vote made it easier for the commission to issue rules, and the FTC has told Congress there's "scant evidence to support manufacturers' justifications for repair restrictions."

Data collection

Federal privacy legislation is still stuck in neutral, but Biden wants the FTC, which has powers over competition and "unfair or deceptive acts" by businesses, to issue "rules on surveillance and the accumulation of data." If the FTC takes the issue up, that could be a big uh-oh for Google, Facebook, data brokers, health tech and a whole lot more — although the agency has complained extensively that lack of resources constrain it from undertaking a more ambitious agenda. Khan, who appeared at the order's signing at the White House, has also written about data collection, which she compared to pollution.

Pressure on mergers, with a data twist

Big Tech's deals lawyers should already know that Washington wants their jobs to be harder. If they haven't gotten the message, though, Biden is calling for more attention on of a whole class of M&A that helped Big Tech grow to its lofty sizes without much scrutiny. Those deals include purchases of tiny companies that supposedly haven't yet proven they could pose a competitive threat to bigger ones (see Facebook/Instagram), or deals that could have major implications for user privacy (see Facebook/WhatsApp).

Biden also wants to be clear that both the FTC and the Justice Department, which also oversees competition law, can go back to challenge old deals. Again, the FTC need not listen to him, and while the Justice Department is more firmly under his control, the president is supposed to stay out of law enforcement. But there are signs, particularly in the FTC's Facebook lawsuit, that the government's lawyers might welcome the assignment (though the FTC still has to fix its Facebook complaint if it wants to pursue it). Khan and Justice Department's acting antitrust chief, Richard Powers, issued a joint statement soon after Biden signed the order promising "a hard look" at merger guidelines in a forthcoming review.

Competing with sellers on your site

This one is aimed straight at Amazon: The White House wants the FTC to issue rules governing "unfair methods of competition on internet marketplaces," citing reports about the e-commerce giant accessing the data of independent merchants who also sell through its site and then using the information to better its own offerings. Likely the most prominent critic of the practice is Khan herself, whose Yale Law Journal paper on the topic while still a law student helped launch her career and build the profile of the would-be antitrust reform movement.

Fintech, too

The White House also highlighted its concern with consolidation of banks and the resulting decline in small business loans. To combat the issues, the order encouraged the Justice Department and the banking agencies — the Federal Reserve, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency — to "update guidelines" on banking mergers. (The Fed and FDIC are independent; OCC is part of the Treasury Department.)

Biden also encouraged the Consumer Financial Protection Bureau, another independent agency, to issue rules enabling consumers to "download their banking data and take it with them" to make it easier for consumers to switch banks. The CFPB is already working on rule changes governing how consumers can access their financial data and move it, including to fintech companies. That change is not specifically about downloading bank data or switching banks, but the order could push the CFPB, if it takes up the downloading issue, to make it easier for consumers to move their data from banks to fintech firms to do things like apply for loans.

The honorable mentions

Consolidation and competition — or the lack thereof — are not confined only to the top Big Tech firms, and the order hits several other targets. The labor section, for example, includes a call to ban or limit clauses that keep workers from doing similar work or going over to a competitor, a practice that is widespread in tech despite being nominally unenforceable in California. The order also seeks to allow hearing aids, which have grown into high-tech devices, to be sold over-the-counter. Farther afield, the order also has provisions on baggage fees, drug importation from Canada and pay for chicken farmers — the breadth and effectiveness of which likely depend on agency leadership and the power of industries to win carveouts from their regulators.

Tomio Geron and Issie Lapowsky contributed to this report.

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