This Note explores how antitrust law, through FTC rulemaking, can address issues created by technology firms engaging in self-preferencing. This Note specifically examines how these firms harm competition by leveraging their position as a major platform, while also using that platform to compete in downstream markets. For example, Apple content can be watched on an Apple TV through a subscription to Apple TV+. An Amazon Echo speaker can be purchased on Amazon.com and shipped using Fulfillment by Amazon. There are competitors to Apple content (like Hulu) or Amazon products (like Sonos speakers), but those competitors must list on Apple or Amazon’s platform. Similarly, app developers and publishers rely on Meta, and websites like Yelp rely on Google, for these platforms have unparalleled reach. Big technology firms can entrench their power through unfair, anticompetitive, and exploitative practices when downstream competitors have limited realistic alternatives.
There have been increasing calls to ‘regulate big tech.’ In this era, Apple, Alphabet (Google), Amazon, and Meta (Facebook) are facing scrutiny for their data privacy policies, content moderation decisions, and anticompetitive behaviors. These issues overlap, but crucially, are also distinct. While cultural norms, government consent decrees, and private lawsuits primarily shape how these platforms operate in the United States, ‘antitrust law’ is increasingly being
turned to for a legal remedy to these issues. However, because the types of problems presented are categorically distinct, regulators need to clearly establish what is and what is not unlawful. For example, legal proposals aimed at enhancing competition must navigate the implications of liability associated with content moderation.
This Note takes a practical approach on where current antitrust law could be most effective at banning self-preferencing, and therefore protecting competition and innovation when big technology platforms have exceptional access to third-party data and ‘decisions’ are made by a combination of software, user behavior, and algorithms. The growth-over-profits mindset of many technology firms also makes imagining ‘breaking-up’ big digital tech
platforms difficult, when business segments behaving anticompetitively could be operating at a loss. Structural separation may be relied on one day, but an immediate and broadly applicable framework through rulemaking is needed today.
The Federal Trade Commission (FTC) has authority to enforce the existing ban on unfair methods of competition. As technology, business, and the internet innovate and evolve, so have anticompetitive practices and their impacts. This Note argues that FTC rulemaking is the most efficient and targeted method to regulate digital platforms behaving anticompetitively through self-preferencing.