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Biden order calls for net neutrality, antitrust action, ISP competition – and right to repair your own damn phone

Market dominance of tech giants in President's cross-hairs

US President Joseph Biden on Friday signed a sweeping executive order directing government agencies to take steps intended to enhance economic competition and prevent anticompetitive practices, among the tech industry as well as others.

The Executive Order on Promoting Competition in the American Economy includes 72 initiatives addressed to more than a dozen government agencies, several of which aim to curtail the market dominance of tech giants.

"For decades, corporate consolidation has been accelerating," the White House said in a statement. "In over 75 per cent of US industries, a smaller number of large companies now control more of the business than they did twenty years ago. This is true across healthcare, financial services, agriculture and more."

The White House contends that lack of competition has been driving prices up, wages down, and has reduced the creation of new businesses by almost 50 per cent since the 1970s.

The Biden administration hopes its directives to various agencies will lead to: a ban or limitation on non-compete clauses; lower prescription drug prices; more affordable hearing aids; a ban on internet service termination fees landlord-based service limitations, and the restoration of net neutrality rules; refund requirements and fee disclosures from airlines; agricultural labor rights improvements and right-to-repair assurances; bank financial data portability rules; and federal agency spending rules geared to support smaller businesses.

Right-to-repair advocates welcomed the Biden administration's efforts. The White House specifically called out "cell phone manufacturers and others blocking out independent repair shops," adding that the FTC will be asked to "issue rules against anticompetitive restrictions on using independent repair shops or doing DIY repairs of your own devices and equipment."

“The Biden administration’s Executive Order recognizes what repair advocates have said all along: if you buy a product, you own it, and you should be able to fix it however you choose - either by yourself or with the help of an independent repair professional,” Kerry Maeve Sheehan, iFixit’s head of US Policy, told The Register. “We’re grateful that the administration is taking aggressive steps to protect everyone’s Right to Repair, and eager to see how the FTC takes up the call.”

And the ACLU applauded the effort to make broadband more affordable and accountable.

"We applaud President Biden for urging the FCC to take actions that will restore net neutrality and help to lower broadband costs and ensure necessary transparency. But for the agency to achieve those goals, we need a full slate of FCC Commissioners," Kate Ruane, ACLU senior legislative counsel, told El Reg. "Biden must appoint a fifth FCC Commissioner immediately."

A banking industry trade group, however, sounded less pleased and complained about unfair competition from unregulated FinTech firms and federally-supported organizations. Greg Baer, CEO and president of the Bank Policy Institute, told The Register that the banking industry is "among the most competitive, least concentrated industries in America."

"Banks continue to lose business to unregulated FinTechs or government-sponsored enterprises, whose presence in the market current DoJ guidelines inexplicably ignore in assessing market competition," he said. "Those guidelines should be amended to reflect the underlying law."

That claim – that there's already robust competition has been heard from tech industry giants for years. Google has been dodging antitrust regulators at least since 2009 by repeating the phrase, "Competition is only a click away." Nonetheless, antitrust efforts directed at tech companies have expanded, with Amazon, Apple, and Facebook all subject to regulatory scrutiny in the US and abroad.

The executive order argues Big Tech has been limiting competition and aims to level the playing field. It calls for vigorous antitrust enforcement, increased merger scrutiny, and policy enforcement focused on the labor, healthcare, and tech sectors.

The order calls for the FTC "to establish rules on surveillance and the accumulation of data" and "to establish rules barring unfair methods of competition on internet marketplaces."

The agency's existing rules appear to be insufficient to constrain supposed anticompetitive behavior. The FTC's antitrust enforcement effort against Facebook fell flat after a judge dismissed the case.

Whether Biden's executive order ends up leading to more enforceable rules will depend on how those rules are crafted, how well they survive inevitable legal challenges, and a political landscape stable enough to sustain lengthy, hard-fought litigation against companies with enormous resources.

Among Democratic legislators at least, there's some support for stronger antitrust enforcement; Republicans, having groused about Big Tech for reasons of their own, may be sufficiently motivated to support some of the Biden administration's goals. But don't count on it. ®

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