Sec. 2. Unlawful discriminatory conduct
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/bill/117/hr/3816/rh/section-2A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
It shall be unlawful for a person operating a covered platform, in or affecting commerce, to engage in any conduct in connection with the operation of the covered platform that— advantages the covered platform operator’s own products, services, or lines of business over those of another business user; excludes or disadvantages the products, services, or lines of business of another business user relative to the covered platform operator’s own products, services, or lines of business; or discriminates among similarly situated business users, including, but not limited to, those business users employed by businesses owned by women and minorities.
It shall be unlawful for a person operating a covered platform, in or affecting commerce, to— restrict or impede the capacity of a business user to access or interoperate with the same platform, operating system, hardware or software features that are available to the covered platform operator’s own products, services, or lines of business; condition access to the covered platform or preferred status or placement on the covered platform on the purchase or use of other products or services offered by the covered platform operator; use non-public data to offer, or support the offering of, the covered platform operator’s own products, services, or lines of business that are obtained from or generated on the covered platform— by the activities of a business user; or through an interaction of a covered platform user with the products or services of a business user; restrict or impede a business user from accessing data generated on the covered platform by the activities of the business user, or through an interaction of a covered platform user with the business user’s products or services, such as by establishing contractual or technical restrictions that prevent the portability of such data by the business user to other systems or applications; restrict or impede covered platform users from un-installing software applications that have been preinstalled on the covered platform or changing default settings that direct or steer covered platform users to products or services offered by the covered platform operator; restrict or impede businesses users from communicating information or providing hyperlinks on the covered platform to covered platform users to facilitate business transactions; in connection with any user interface, including search or ranking functionality offered by the covered platform, treat the covered platform operator’s own products, services, or lines of business more favorably than those of another business user; interfere with or restrict a business user’s pricing of its products or services; restrict or impede a business user, or a business user’s customers or users, from interoperating or connecting to any product or service; or retaliate against any person that raises concerns with any law enforcement authority about actual or potential violations of State or Federal law or that initiates or participates in litigation to enforce this Act.
Subsections
(a)and
(b)shall not apply if the defendant establishes by clear and convincing evidence that the conduct described in subsections
(a)or (b)— would not result in harm to the competitive process by restricting or impeding legitimate activity by business users; or was narrowly tailored, could not be achieved through less discriminatory means, was nonpretextual, and was necessary to— prevent a violation of, or comply with, Federal or State law; or protect user privacy or other non-public data; or increases consumer welfare. The Federal Trade Commission or Department of Justice shall designate a covered platform for the purpose of implementing and enforcing this Act. Such designation shall— be based on a finding that the criteria set forth in subsection (g)(4)(i)–(iii) are met; be issued in writing and published in the Federal Register; and apply for 10 years from its issuance regardless of whether there is a change in control or ownership over the covered platform unless the Commission or the Department of Justice removes the designation under subsection (e). The Commission or the Department of Justice shall— consider whether its designation of a covered platform under subsection
(d)should be removed prior to the expiration of the ten-year period if the covered platform operator files a request with the Commission or the Department of Justice, which shows that the online platform no longer meets the criteria set forth in subsection (g)(4)(i)–(iii); determine whether to grant a request submitted under paragraph 1 not later than 120 days after the date of the filing of such request; and obtain the concurrence of the Commission or the Department of Justice, as appropriate, before granting a request submitted under paragraph (1). Any covered platform operator who is found to have violated subsections
(a)or
(b)shall be liable to the United States or the Commission for a civil penalty, which shall accrue to the United States Treasury, in an amount not more than the greater of— 15 percent of the total United States revenue of the person for the previous calendar year; or 30 percent of the United States revenue of the person in any line of business affected or targeted by the unlawful conduct during the period of the unlawful conduct. This civil penalty may be recovered in a civil action brought by the United States or the Commission. Remedies provided in this subsection are in addition to, and not in lieu of, any other remedy available under Federal or State law. The Assistant Attorney General of the Antitrust Division, the Commission, or the attorney general of any State may seek, and the court may order, with respect to a violation that gives rise to the suit, restitution for losses, rescission or reformation of contracts, refund of money, or return of property. The Assistant Attorney General of the Antitrust Division, the Commission, or the attorney general of any State may seek, and the court may order, disgorgement of any unjust enrichment that a covered platform operator obtained as a result of the violation that gives rise to the suit. The Assistant Attorney General of the Antitrust Division, the Commission, or the attorney general of any State may seek, and the court may order, relief in equity as necessary to prevent, restrain, or prohibit violations of this Act. If the fact finder determines that a violation of this Act arises from a conflict of interest related to the covered platform operator’s ownership or control of multiple lines of business, the court shall consider requiring, and may order, divestiture of the line or lines of business that give rise to such conflict. For purposes of this section, the term conflict of interest includes the conflict of interest that arises when— a covered platform operator owns or controls a line of business, other than the covered platform; and the covered platform operator’s ownership or control of that line of business creates the incentive and ability for the covered platform operator to— advantage the covered platform operator’s own products, services, or lines of business on the covered platform over those of a competing business or a business that constitutes nascent or potential competition to the covered platform operator; or exclude from, or disadvantage, the products, services, or lines of business on the covered platform of a competing business or a business that constitutes nascent or potential competition to the covered platform operator. If the fact finder determines that a covered platform operator has engaged in a pattern or practice of violating this Act, the court shall consider requiring, and may order, that the Chief Executive Officer, and any other corporate officer as appropriate to deter violations of this Act, forfeit to the United States Treasury any compensation received by that person during the 12 months preceding or following the filing of a complaint for an alleged violation of this Act. In this section: The term antitrust laws has the meaning given the term in subsection
(a)of section 1 of the Clayton Act ( 15 U.S.C. 12 ). The term Business User means a person that utilizes or plans to utilize the covered platform for the sale or provision of products or services. The term Commission means the Federal Trade Commission. The term covered platform means an online platform— that has been designated as a covered platform under section 2(d); or that— at any point during the 12 months preceding a designation under section 2(d) or at any point during the 12 months preceding the filing of a complaint for an alleged violation of this Act— has at least 50,000,000 United States-based monthly active users on the online platform; or has at least 100,000 United States-based monthly active business users on the online platform; at any point during the 2 years preceding a designation under section 2(d) or at any point during the 2 years preceding the filing of a complaint for an alleged violation of this Act, is owned or controlled by a person with United States net annual sales or a market capitalization greater than $600,000,000,000, adjusted for inflation on the basis of the Consumer Price Index; and is a critical trading partner for the sale or provision of any product or service offered on or directly related to the online platform. The term critical trading partner means an entity that has the ability to restrict or impede the access of— a business user to its users or customers; or a business user to a tool or service that it needs to effectively serve its users or customers. The term person has the meaning given the term in subsection
(a)of section 1 of the Clayton Act ( 15 U.S.C. 12 ). Not later than 6 months after the date of enactment of this Act, the Commission shall adopt rules in accordance with section 553 of title 5, United States Code, to define the term data for the purpose of implementing and enforcing this Act. The term data shall include information that is collected by or provided to a covered platform or business user that is linked, or reasonably linkable, to a specific— user or customer of the covered platform; or user or customer of a business user. The term online platform means a website, online or mobile application, operating system, digital assistant, or online service that— enables a user to generate content that can be viewed by other users on the platform or to interact with other content on the platform; facilitates the offering, sale, purchase, payment, or shipping of products or services, including software applications, between and among consumers or businesses not controlled by the platform operator; or enables user searches or queries that access or display a large volume of information. The term control with respect to a person means— holding 25 percent or more of the stock of the person; having the right to 25 percent or more of the profits of the person; having the right to 25 percent or more of the assets of the person, in the event of the person’s dissolution; if the person is a corporation, having the power to designate 25 percent or more of the directors of the person; if the person is a trust, having the power to designate 25 percent or more of the trustees; or otherwise exercises substantial control over the person. The term State means a State, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States. Except as otherwise provided in this Act— the Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this Act; the Attorney General shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms of the Sherman Act ( 15 U.S.C. 1 et seq. ), Clayton Act ( 15 U.S.C. 12 et seq. ), and Antitrust Civil Process Act ( 15 U.S.C. 1311 et seq. ) were incorporated into and made a part of this Act; and any attorney general of a State shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms of the Sherman Act ( 15 U.S.C. 1 et seq. ) and the Clayton Act ( 15 U.S.C. 12 et seq. ) were incorporated into and made a part of this Act. A violation of this Act shall also constitute an unfair method of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ). If the Commission has reason to believe that a person violated this Act, the Commission may commence a civil action, in its own name by any of its attorneys designated by it for such purpose, to recover a civil penalty and seek other appropriate relief in a district court of the United States. Any attorney general of a State may bring a civil action in the name of such State for a violation of this Act as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, and may secure any form of relief provided for in this section. The Commission, Assistant Attorney General of the Antitrust Division, or any attorney general of a State may seek a temporary injunction requiring the covered platform operator to take or stop taking any action for not more than 120 days and the court shall grant such relief if the Commission, the United States, or the attorney general of a State proves— there is a plausible claim that a covered platform operator took an action that violates this Act; and that action impairs the ability of at least 1 business user to compete with the covered platform operator. The emergency relief shall not last more than 120 days from the filing of the complaint. The court shall terminate the emergency relief at any time that the covered platform operator proves that the Commission, the United States, or the attorney general of the State seeking relief under this section has not taken reasonable steps to investigate whether a violation has occurred. Nothing in this subsection prevents or limits the Commission, the United States, or any attorney general of any State from seeking other equitable relief as provided in subsection
(f)of this section. A proceeding for a violation of this section may be commenced not later than 6 years after such violation occurs.
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