DOJ: JUDGE MISTAKEN ON FACEBOOK'S MONOPOLY MOVES — The Justice Department is urging a federal appeals court to rectify what it views as errors in its decision to dismiss a state-led antitrust suit against Facebook — an effort which could also help the FTC's case against the company. In an amicus brief signed by Assistant Attorney General for Antitrust Jonathan Kanter and filed late on Friday, DOJ prosecutors said U.S. District Judge James Boasberg failed to consider how Facebook's actions overlap to cement a social networking monopoly. Boasberg, an Obama appointee, separated claims about Facebook's acquisitions of Instagram and WhatsApp from allegations that the social network cut off rivals' access to its platform, prosecutors said. (Those actions, the prosecutors argued, had reinforced each other to keep potential competitors from reaching the users they would've needed to grow.) "By separating the acquisitions from the rest of the monopolization claim, the district court may have overlooked the full potential for anticompetitive effects," the DOJ lawyers said. "By thwarting emerging competitive threats from app developers, Facebook's policies allegedly prevented app developers from creating (or contributing to the creation of) superior technologies that could erode Facebook's monopoly." The prosecutors also took issue with Boasberg's statement that nothing can now be done about Facebook's access policy, since the company later changed it. Courts can order a "reparative injunction" that requires Facebook to take certain actions to help restore competition in the market, they said. The prosecutors noted that Microsoft, in its own antitrust case, was required to make certain retroactive disclosures so rivals could ensure their software operated properly. TAKE 2 FOR BEDOYA AT FTC: With Democrats and their allies increasingly anxious over the ongoing failure to secure an FTC majority, on Wednesday the Senate Commerce Committee will vote — again — on privacy advocate Alvaro Bedoya's nomination to serve as the third Democrat on the Federal Trade Commission. The do-over comes after the committee split 14-14 on Bedoya's nomination in December, with every Republican senator voting against the Georgetown Law School professor's nomination. Several Republicans, including ranking member Sen. Roger Wicker (R-MS), took umbrage at Bedoya's "divisive" social media presence. The deadlock would've required Sen. Majority Leader Chuck Schumer to expend valuable floor time on a discharge petition to force a floor vote on Bedoya. But Bedoya's nomination expired before that could take place. Biden renominated Bedoya on Jan. 4, along with Gigi Sohn (her nomination to serve as Democratic commissioner at the Federal Communications Commission will receive its first vote on Wednesday). — Delays on delays: There's little indication that Wednesday's vote will be much different for Bedoya than the one in December. With the Senate already staring down a packed calendar, the prospect of a significant delay on Bedoya's nomination throws into doubt the ambitious plans rumored to be brewing under FTC Chair Lina Khan's leadership. In addition to serving as a crucial third Democratic vote, Bedoya — a privacy expert — will likely play a key role in any eventual privacy rulemakings at the FTC. In the meantime, privacy advocates are growing antsy. In a letter sent Friday to Senate Commerce Chair Maria Cantwell and first shared with MT, nearly twenty children's privacy groups urged senators to confirm Bedoya posthaste. TELECOM INDUSTRY URGES 'BUY AMERICAN' OPT-OUT: A coalition of telecommunications industry lobbyists wants the Biden administration to waive "Buy American" requirements in the recent bipartisan infrastructure law for certain information and communications technologies. — No good options: The new campaign, led by the Telecommunications Industry Association, argues that the available choices for U.S.-made telecom equipment are insufficient to meet the law's goal of building new, affordable broadband networks in underserved or hard-to-reach regions. "Americans without access to broadband cannot wait for a domestic supply chain to be developed out of whole cloth," reads a letter sent this morning from the industry coalition to Commerce Secretary Raimondo, Transportation Secretary Pete Buttigieg and Agriculture Secretary Tom Vilsack. The lobbyists say a limited opt-out provision for "Buy American" requirements would be similar to previous waivers the telecom industry received as part of the 2009 American Recovery and Reinvestment Act. Correction: Friday's MT misstated the name of Bret Schafer's organization. Schafer is the head of the information manipulation team at the German Marshall Fund's Alliance for Securing Democracy.
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