Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Saturday, February 24, 2018

Deputy Assistant Attorney General Roger Alford Delivers Remarks at King's College in London

Deputy Assistant Attorney General Roger Alford Delivers Remarks at King's College in London.  See here.

Of note (given Makan Delrahim's speech earlier this week):

Let me touch briefly on innovation in the context of digitalization and online platforms. There is no doubt that digitalization, including the aggregation and commercial use of large quantities of data, has created a multitude of dynamic product offerings that deliver incredible benefits to consumers. And there also is no doubt that these products are technologically complex and rapidly evolving. But there is no reason to think that the lessons we have learned over the past several decades about the role of antitrust enforcement in protecting and respecting innovation do not apply to the digital marketplace. Quite the opposite: there is a strong case to be made that years of consistent application of antitrust law, with innovation as a key concern, fueled the growth of digital companies in the first place.

As in other contexts, when evolving technology is involved, evidence-based investigations are better than static, one-size-fits-all solutions. It is for this reason that we do not employ the term “Big Data.” We view that term as ill-defined and vague, and too blunt to capture the nuances of the modern information-based marketplace. It is not even clear in the taxonomy of markets whether Magnus Notitia is a species, genus, or family. As Commissioner Margrethe Vestager has stated, it is important to keep the conversation complicated, because when you oversimplify the term “Big Data” you miss some of the real benefits and opportunities that it may have to offer. 

With respect to a firm’s unilateral business conduct, if we abandon the approach of carefully assessing the facts on a case-by-case basis in favor of a one-size-fits-all approach that presumes anticompetitive effects simply because of the nature of the industry, there is a genuine risk of reaching the wrong conclusion. When a major antitrust agency rushes to judgment in challenging a digital market competitor, one can be confident that other agencies will follow in its footsteps. The price of a poor enforcement decision is not borne only by the companies under investigation, it is also borne by consumers, who suffer when incentives to innovate are diminished. So it is critical that we are careful in how we proceed in analyzing digital markets. 

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