Upping the “Ante” on Competition Regulation: Gambling with the Future of Big Tech?

Policymakers, regulators, and commentators alike have criticized antitrust enforcers’ attempts at constraining “Big Tech” as excessively lenient and far too slow. This perceived failure, along with widespread declarations of certain platforms’ incontestable dominance, have led to calls for a revamped approach to competition in digital markets, including expansive new regulatory structures like the European Union’s Digital Markets Act (“DMA”). But attempts to clip the wings of large platforms through ex
ante regulation carry some risk, as new compliance burdens, uncertainty, and other unintended consequences may do more to impede competition in these dynamic and evolving markets than nurture it. In this article, we examine these risks, key provisions in the DMA, and the unanswered questions that still remain even after its enactment.

By Ben Bradshaw, Peter Herrick & Sheya Jabouin^[1]

I. INTRODUCTION

Antitrust enforcement efforts aimed at reining in “Big Tech” in recent years have been lax and ineffectual – at least, that is the familiar refrain we hear from policymakers, regulators, and numerous antitrust commentators. Leadership in the U.S. antitrust agencies, Congress, and the European Commission (“Commission”) contend that various errors and omissions in the past and shortcomings in the existing antitrust toolkit require an overhaul and entirely new approach to slaying the Big Tech Leviathan. As Assistant Attorney General Jonathan Kanter