Kyodo via AP Images
Facebook’s Mark Zuckerberg and three other CEOs of major tech companies under investigation will appear by videoconference before the House Antitrust Subcommittee on Monday.
Lawmakers hosting four tech CEOs in a upcoming, high-profile House Antitrust Subcommittee hearing must fit each round of questioning into five-minute increments, the Prospect has learned. All four CEOs—Amazon’s Jeff Bezos, Facebook’s Mark Zuckerberg, Google’s Sundar Pichai, and Apple’s Tim Cook—will appear on a single panel, remotely via videoconference.
These developments are wins for the CEOs, who will have a greater opportunity to obfuscate and hide behind one another throughout most of the questioning.
However, there will be an indefinite number of rounds of questioning, at the discretion of chair David Cicilline (D-RI). And Cicilline can ask an unlimited number of questions at the end of the hearing, making that when the most substantive and sustained testimony will surely occur.
The bulk of it, however, will proceed more like a prizefight: short bursts of activity with a time limit, preventing members from engaging in diligent questioning without interruption. In essence, CEOs facing fire over anti-competitive practices will get saved by the bell every five minutes.
The hearing was originally scheduled for Monday, but will likely be delayed, according to a source familiar with the situation, because the late John Lewis will begin lying in state at the Capitol that day. The new date for the hearing has yet to be confirmed.
The format of the hearing was the subject of significant jousting between Big Tech representatives, committee staff, and members. While it may seem obscure, the rules of engagement for hearings could make the difference between one that exposes CEOs to serious scrutiny or allows them to skate by.
Remarkably, legal representatives for three of the four companies previously served in the Obama administration, including Lanny Breuer, former head of the Justice Department’s Criminal Division, now representing Amazon as part of Covington & Burling’s legal team. Only Facebook does not have a former Obama official in their corner.
The hearing is the culmination of 13 months of work, in what aides describe as the most comprehensive congressional inquiry into corporate monopolies in decades. The committee has held 385 hours of calls and briefings during the investigation, and received 1.3 million documents from the tech companies. This was all handled voluntarily without the need for subpoenas, though the subcommittee reserves that right if they don’t get the answers they want at the hearing.
Initially, Cicilline announced that the 13 members of the subcommittee, along with House Judiciary Committee chair Jerrold Nadler (D-NY) and ranking member Jim Jordan (R-OH), would get ten minutes per round. Jordan argued for five minutes, which is the more standard practice in committee hearings. He got his wish, with prodding from the Big Tech companies.
Jordan did not win on getting the hearing moved to the full Judiciary Committee, which would have increased the questioners from 15 to 40, and limited the number of extra rounds that could feasibly have been granted. Keeping the hearing in the Antitrust Subcommittee also will circumscribe the subject matter.
Senior aides said that the hearing would be tightly focused on competition issues, rather than broad oversight. They described it as an “evidentiary” hearing, the results of which would be incorporated into a final report, to be released later this year.
One problem committee members might have is narrowing down the bevy of possible lines of inquiry, as evidenced by the millions of documents produced. All four companies dominate different markets—internet search, social media, e-commerce, smartphone hardware, smart speakers, etc.—and their conduct has raised an array of questions that seemingly grows by the day. Just in the past week, regulators in the EU have been investigating Apple, and U.K. enforcers have called for a breakup of Google’s ad-tech business. Antitrust regulators in the U.S. are investigating all four companies, both in the Justice Department and among state attorneys general.
You could start the questioning, for example, with questions about the Apple App Store, which serves a gatekeeper function that blocks app developers from hundreds of millions of iPhone users without paying tribute. Ahead of the hearing, Apple released a self-serving paper claiming that prices for App Store entry are industry standard (of course, it’s a highly concentrated industry where Apple is the first mover). Microsoft CEO Brad Smith, himself helming a tech giant under antitrust scrutiny, spoke to the subcommittee remotely last week about Apple’s App Store dominance.
You could also ask about Facebook and Google’s use of data surveillance and targeted advertising to strip publishers of the ability to use their audience bases to earn ad market revenues. You could ask about Google using its search dominance to steer web surfers to its products and services, and forcing website owners to pay for ads just to get in the top half of the search page. You could ask about Facebook’s documented practice of scooping up rival social media sites or copying their work, to crush them before they threaten market share.
One perfect example of leveraging market power comes from Amazon’s streaming service. We know about Amazon’s position as host of an online-sales marketplace and seller of in-house brands, and how it can use data to push customers to whatever makes it the most money (it’s even giving up ad space to promote its own brands instead). But that’s also true with streaming, where Amazon owns the now-venerable Amazon Prime Video, and also platforms like Fire TV that host other streaming services.
The hearing is the culmination of 13 months of work, in what aides describe as the most comprehensive congressional inquiry into corporate monopolies in decades.
Predictably, Amazon has been blocking new entrants on Fire TV, which together with Roku accounts for 70 percent of the streaming-platform market. So far, NBCUniversal’s Peacock network is not available on Fire TV, nor is HBO Max. It’s similar to a television network seeking carriage on a tier of cable offerings; in this case, Amazon has access to the users, and it’s sticking up HBO Max and Peacock to give them entry. Reportedly, Amazon wants the ability to sell ad space on these rival networks.
These are not mom-and-pop offerings, but the work of giant telecoms Comcast and AT&T. Amazon waged a similar battle with Disney+, culminating in a deal a month after it launched. That Amazon feels free to squeeze even other monopolists over its streaming services speaks to the incredible power it wields.
These potential topics will have to be managed by the subcommittee members, with just five minutes at a time to advance their points. Democrats on the subcommittee include an interesting mix of progressives like Jamie Raskin (D-MD), Hank Johnson (D-GA), and Progressive Caucus co-chair Pramila Jayapal (D-WA); freshman members like Joe Neguse (D-CO), Mary Gay Scanlon (D-PA), and Lucy McBath (D-GA); and Val Demings (D-FL), a wild-card candidate to be Joe Biden’s vice president. GOP ranking member Jim Sensenbrenner has been supportive of the investigation, although Republicans will likely spend time on the hot-button issue of alleged conservative censorship on social media platforms and bias in the tech industry.
Cicilline has been aggressive, and his final group of questions is sure to be the most important part of the hearing. But because that will come at the end, many reporters will have already filed stories by then.
The final report is likely to identify legislative gaps, if any, in holding large tech companies accountable for anti-competitive conduct. It’s unclear how focused it will be on the conduct of the companies themselves, or just whether regulators need more tools. But committee aides are confident that the hearing will bring these issues to wider attention, despite the format hindrances.
