With help from Leah Nylen
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— Kanter scores top DOJ antitrust job: The White House’s choice for a top trustbusting post at the Justice Department is the latest in a line of progressives.
— FTC back for more: At their second meeting this month, commissioners are planning a vote that could block tech giants from snapping up promising startups.
— Peeking under the digital hood: As the Senate readies a key procedural vote on its massive infrastructure compromise, leaked draft text could frustrate some fans of fiber-optic broadband.
IS IT ONLY WEDNESDAY? John Hendel here, dizzy from nominations and broadband machinations. And thanks to a certain Amazon founder’s spaceflight, I can’t get this song out of my head.
Share your sanity tips at [email protected] and follow me on Twitter @JohnHendel. Got an event for our calendar? Send details to [email protected]. Anything else? Team info below. And don’t forget: Add @MorningTech and @PoliticoPro on Twitter.
IT’S KANTER — At long last, the White House has announced its pick for DOJ antitrust chief: progressive favorite Jonathan Kanter. (Emily and Leah have a full rundown on anti-monopoly advocates’ elation at achieving the Wu & Khan & Kanter trifecta).
This is very bad news for Google. The 47-year-old Kanter has been involved in antitrust fights with the search giant as far back as 2007, when Google bought ad tech company DoubleClick. He was a key figure in the FTC’s 2012 antitrust investigation against Google, in which he represented Microsoft. And he has spent the years since collecting Google critics — the likes of Yelp, News Corp. and Mapbox, among others — as his clients.
It’s also bad news for Apple. Though his work on Google is his best-known, Kanter also represents some Apple critics, like the Coalition for App Fairness, and has helped develop antitrust arguments to be used against it. Kanter split with Paul, Weiss, his former law firm, over Apple; when the firm poached top antitrust litigators Karen Dunn and Bill Isaacson from Boies Schiller last year, the duo brought their Apple work along, leading to legal conflicts requiring Kanter’s departure. DOJ’s antitrust division has been investigating Apple for almost two years now and is nearing a decision on whether to bring a case.
Expect accusations of conflicts of interest to fly. Just like Amazon and Facebook have sought to disqualify FTC Chair Lina Khan, Google and Apple will surely try to knock Kanter out from its cases. Both the White House and DOJ declined to comment on the ethics issues at play, but people familiar with the discussions said Kanter’s nomination itself indicates the administration believes that ethics waivers can resolve the concerns.
FTC TO VOTE ON MERGER SETTLEMENT REVAMP — Khan’s FTC is set to vote today on pulling back a Clinton-era policy that limited when companies must seek pre-approval of mergers — an effort that could lead to limits on tech giants’ acquisitions of promising startups.
— History lesson: In 1986, the FTC got in a fight with Coca-Cola over a proposed merger with Dr. Pepper. A federal judge sided with the FTC and the soda companies called it off. But that wasn’t the end: For seven years, the FTC and Coke fought over whether the agency could make the soda giant give advance notice of future deals. Bill Clinton’s FTC settled the case in 1995 and within months adopted a new policy statement outlining “limited circumstances” where it would ask for advance notice or more stringent pre-approval.
— Stephen Calkins, the FTC’s general counsel in 1995 and the statement’s author, told Leah the agency doesn’t technically need to repeal the statement since it still has the right to require prior notice or approval in settlements. In practice, however, that power is rarely used.
— What a repeal would mean: If the agency repeals the policy, it will be able to require prior notice or approval as a condition of any deal that requires a consent decree. That might lead companies to balk on settlements. Calkins now acknowledges that the FTC required 10-year notice or approval provisions mostly because companies didn’t think the issue was worth litigating — until the Coke case.
In repealing the statement, the FTC is likely to cite a $1.7 billion deal abandoned last week between Berkshire Hathaway Energy Company and Dominion Energy. In 1995, the agency blocked the same proposed combination of natural gas pipelines in Salt Lake City, Utah. Had a prior approval provision been adopted then, the agency might not have needed to do a full “re-review” of the deal.
Also on tap today: the ‘right to repair.’ The FTC expects to issue a policy statement on letting consumers bypass manufacturers for repairs on their products. It’s an issue that affects everyone from farmers seeking to fix their own equipment to consumers who’d rather go to small repair shops instead of Apple’s Genius Bar to fix a cracked iPhone screen. The FTC told Congress in May that it might undertake a rulemaking to clarify when repair restrictions violate the law — rules a White House executive order on competition also urged the FTC to adopt.
No word yet on what the policy statement will say; the FTC doesn’t plan to issue anything until after today’s vote, much to the dismay of commission-watchers.
AND SCRUTINY, PLEASE? Advocacy groups are lining up to ask the FTC to take on their chosen targets. Protect Our Restaurants, an endeavor from antimonopoly groups, is asking Khan to probe dominant food delivery apps, while the National Association of Wholesaler-Distributors wants more scrutiny of how third-party sellers fare on Amazon (it raised similar e-commerce concerns with the General Services Administration).
BROADBAND DETAILS SPILL OUT AHEAD OF INFRASTRUCTURE VOTE — Today’s Senate procedural vote on whether to begin consideration of the infrastructure deal will test how senators feel about it (current mood: meh). But 154 pages of leaked draft legislative text, unveiled by your MT host for Pros Tuesday, at least provide a glimpse into how Senate negotiators may structure the $65 billion in broadband investments the package would provide.
— The draft is likely to fuel renewed advocacy from consumer groups and anyone else hoping for ultra-fast fiber optic buildout, as it instead opts for lower minimum broadband speed thresholds (100 Megabits per second download over 20 Mbps upload would count as “underserved” for the $40 billion tentatively slated to go to the Commerce Department’s state grants, less than the fiber-focused minimums some Democrats wanted).
— The catch: The draft is just a draft; it’s likely not the final word on broadband. The pages don’t address money for USDA’s rural broadband program, for instance, and policymakers may still be grappling over affordability provisions. (The draft leaves the proposed “low-cost broadband option” undefined.)
— Another tidbit: Although heavyweights like AT&T had hoped Congress would substantially rethink the FCC subsidy model, the draft shows the Senate is at least eyeing changes. Language would have the FCC report to Congress within nine months about including broadband in its universal service mandate, including recommendations for how Congress could help.
MEANWHILE: YOUR CHEAT SHEET FOR TECH BILLS ON THE MOVE — Bear with us, the House is revving up ahead of the planned August recess with a boatload of movement on tech and telecom.
— The House Energy and Commerce Committee has teed up votes for today on eight wireless security and 5G open RAN bills. They’re largely bipartisan affairs, but watch for amendments.
— The House passed five telecom measures Tuesday, including a bill aimed at ensuring you can retain your phone number following a disaster. Here’s that breakdown.
— And the chamber also cleared by 221-205 a bill to restore an FTC consumer protection power, Emily reports. Earlier this year, the Supreme Court had invalidated the agency’s ability to seek monetary relief from companies that defraud consumers. Your move, Senate!
TECH QUOTE DU JOUR — Amazon founder Jeff Bezos, following his journey into space:“I want to thank every Amazon employee and every Amazon customer. Because you guys paid for all this.”
Digital rights activist Danny O’Brien, formerly of the Electronic Frontier Foundation, joins the Filecoin Foundation as a senior fellow … Register of Copyrights Shira Perlmutter names David Carson, Monica McCabe and Brad Newberg as copyright claims officers on the new Copyright Claims Board … FCC will partner with 11 federal, state and local agencies to vet delivery of wireless emergency alerts during a planned Aug. 11 test … The Knight Foundation announces $5.5 million in grants to support research into online speech and liability issues, including grants for Harvard’s Berkman Klein Center for Internet and Society, the Joint Center and the Lincoln Network … Reps. Jennifer Wexton (D-Va.) and Young Kim (R-Calif.) will now lead the Congressional App Challenge.
Blunt considerations: Activists hope Amazon puts its lobbying muscle behind cannabis advocacy, POLITICO writes.
Money moves: Venmo makes a privacy-minded design tweak, TechCrunch reports.
AT&T’s ad tech fire sale: “Sources say [the ad tech unit is] losing tens of millions a year and has been grossly mismanaged,” per Axios.
Can we get a Privacy Shield over here? A Commerce Department official says the U.S. wants a transatlantic privacy deal, stat, via POLITICO Pro.
Five bars in National Landing: AT&T and JBG Smith will launch a 5G ‘smart city’ where Amazon is setting up its new offices.
Tips, comments, suggestions? Send them along via email to our team: Bob King ([email protected]), Heidi Vogt ([email protected]), John Hendel ([email protected]), Alexandra S. Levine ([email protected]), Leah Nylen ([email protected]), Emily Birnbaum ([email protected]), and Benjamin Din ([email protected]). Got an event for our calendar? Send details to [email protected]. And don’t forget: Add @MorningTech and @PoliticoPro on Twitter.