KFTC Needs to Stop Pretending: DMA-style Regulation Isn’t Coming to the U.S. in 2024
According to recent Korean press articles, Korea Fair Trade Commission (KFTC) officials have been promoting Korean policy proposals modeled on the European Union’s Digital Markets Act (DMA) by making a particular claim: the U.S. is poised to pass a DMA-style law in the next year, so Korea should follow suit. There’s just one problem: the claim is false, as everyone in Washington, DC knows that the bill is dead. In fact, the U.S. bill in question, the American Innovation and Choice Online Act (AICOA), died two years ago in the 117th Congress, and there has never been a serious effort to resurrect it in the current 118th Congress.
KFTC officials appear to have misinterpreted the purely symbolic reintroduction of the AICOA bill in the current Congressional term as though a bill introduction indicated passage, not understanding that only 2% to 8% of bills introduced in any given term of the U.S. Congress in the 21st Century have become enacted legislation. Most introduced bills remain just as symbolic and dormant as the current iteration of AICOA, with at least 80% of introduced bills in each Congressional term seeing no activity whatsoever.
There have been policy areas where U.S. legislators have considered imposing regulations on the digital economy in the current Congress, and yet there has been no serious effort to advance the AICOA bill. This is because there is a widespread recognition within Washington, DC that “AICOA was a bill that deserved to die. Many of its consequences are uncertain, but others are just plain bad.” Indeed, researchers found that, if implemented, AICOA would have cost leading U.S. employers $319 billion and cost consumers $22 billion, while costing U.S. pension plans $109 billion by the 2030s.
Many leading antitrust experts from both major U.S. political parties agree that the “gatekeeper” approach to platform regulation and competition policy found in AICOA and the DMA–wherein government authorities designate specific firms for ex ante regulations and antitrust scrutiny that do not apply to non-designated competitors–is poorly thought out and should be discarded. As Herbert Hovenkamp concluded, “the ‘gatekeeper’ approach to competition policy should be abandoned. It is too narrow because it ignores the conduct of firms that are not designated as gatekeepers, including offline sellers who are not included no matter what their size. It is too broad because it overreaches, often egregiously, to condemn competitively harmless conduct by firms defined as gatekeepers. In sum, it puts its enforcement energy in the wrong places.”
Beyond U.S. legislation, Korean officials should also take note that enforcement actions taken by the U.S. Federal Trade Commission and the Department of Justice against technology companies have failed across the board. There is in fact a broadly held view in the United States that the FTC in particular has run up against a brick wall in U.S. courts. The FTC’s novel and tendentious legal theories are gaining no traction in the United States, and are straining the reputation and good functioning of the FTC.
In short, AICOA—and the novel antitrust theories underpinning it—are dead and there is no pathway for any DMA-style law to pass in this Congress or become caselaw through enforcement actions in U.S. courts. KFTC officials and other Korean advocates for DMA-style policies should stop making false claims about U.S. policy developments, and should instead consider the many inherent flaws in a “gatekeeper” approach to platform regulation or competition policy. They need look no further than the extremely complex implementation of the DMA in Europe to see how such a policy can create a wide range of unintended consequences and costs without generating meaningful benefits for consumers.
