MERGER REVIEWS TO GET A REVAMP — In their first joint news conference today, Kanter and Khan plan to lay out how their sister agencies will review and update guidelines on mergers — a task President Joe Biden asked them to undertake in his recent executive order on competition. During the Trump administration, the DOJ and FTC spent 18 months revising joint guidance on vertical mergers — deals between two companies in the same supply chain, which have become increasingly common in the tech industry. (Amazon's deal to buy MGM Studios, currently being reviewed by the FTC, is a prime example). In September, as one its first major initiatives under Khan, the FTC voted 3-2 to withdraw the Trump-era guidelines. But the Justice Department, which hadn't been informed in advance of the FTC's plan, issued its own statement, saying it intended to revise both the vertical merger guidelines and the ones dealing with deals between competitors, or horizontal mergers. The latter set of guidelines had last been revised during the Obama administration. Kanter and Khan are expected to lay out a timeline for the guidance update process, which involves soliciting public comments before redrafting the guidelines. One thing to look out for: whether the DOJ and FTC propose creating just one set of guidance on mergers going forward. That was what Democratic FTC Commissioner Rebecca Kelly Slaughter argued for when she voted to withdraw the vertical merger guidelines last fall. WICKER CALLS FOR NEW SOHN HEARING TO VET 'CONCERNS' — Senate Commerce's top Republican, Sen. Roger Wicker, is calling for a new hearing on FCC nominee Gigi Sohn. He wants to dig into ethics questions after obtaining and reviewing the terms of the confidential $32 million settlement that broadcasters struck with shuttered TV streaming service Locast last fall (Sohn was on the board of the Sports Fan Coalition nonprofit, which ran Locast). — "The possibility of the nominee's future financial liability to a number of companies regulated by the FCC, and the timing of this settlement in relation to her nomination, demands a full discussion by the committee to ensure that there is a clear understanding of the ability for this nominee to act without any cloud of ethical doubt," the Mississippi Republican told John Monday evening. The White House has dismissed such doubts as meritless . And a lawyer for the Sports Fan Coalition told John that federal ethics officials already reviewed the document and that it's unclear how it would trigger additional recusal requirements. The National Association of Broadcasters isn't asking senators to oppose Sohn but has concerns about the settlement, new CEO Curtis LeGeyt told John. "On issues where retransmission consent is material, there are going to be some real concerns from the broadcast industry's perspective on her involvement there," LeGeyt said in an interview. (Retransmission consent refers to the system by which broadcasters are paid for sharing their content with cable and satellite providers — something that caused Locast legal trouble while Sohn was a board member.) — Meanwhile, Greg Guice, who directs government affairs for advocacy group Public Knowledge (which Sohn co-founded), blasted Wicker's statement as a delay tactic aimed at postponing the formation of a Democratic FCC majority. He argued that Wicker could have sought a copy of the settlement from litigants weeks earlier. — Senate Commerce Chair Maria Cantwell (D-Wash.) hopes to hold a committee vote on Sohn's nomination next week. Much speculation centers on whether all of the panel's Democrats would support the nominee, which could be necessary for her to advance if all Republicans are opposed. Moderate Democrat Kyrsten Sinema (D-Ariz.), whose net neutrality views differ from Sohn's, has yet to weigh in. "There were a couple [Democratic members] who were unsure and then told me they were all good with her, but I don't know about Sinema," Cantwell recently told John. — Wicker has not conveyed such a hearing request to either Cantwell or through staff, Senate Commerce Democratic spokesperson Tricia Enright said Monday, in response to the ranking member's statement. GOOGLE'S SECRET PROJECTS — In their newest complaint, Texas and other state attorneys general allege Google deceived both advertisers and website publishers for years, manipulating online ad auctions to ensure the search giant would always profit. In response, senators — who could take up antitrust reform legislation this week — are thinking about ways to clean up online ad markets. The newest complaint, unsealed Friday, details five "secret projects" to manipulate ad auctions. In one, named for former Federal Reserve Chair Ben Bernanke, Google employees increased the number of auctions won by the company's advertising tools, the states alleged. Google told advertisers and websites that it was running what's known as a "second-price auction," meaning the highest bidder wins but only has to pay the amount of the second-place bid, according to the complaint. In reality, Google would have the winning advertiser pay the second-place bid but tell the website selling ad space that the third-place bid won, they said, and pocket the difference. (For a more thorough explanation, with charts, see this thread). As one individual family with the complaint put it, Google "screwed both sides." In the Senate, lawmakers are considering two possible avenues to change online ad markets. The tech nondiscrimination bill (S. 2992 (117)) by Sens. Amy Klobuchar (D-Minn.) and Chuck Grassley (R-Iowa) would bar tech platforms from putting their rivals at a disadvantage. The Senate Judiciary Committee could mark up that bill this week if the Senate stays in session through Thursday. Klobuchar and others are considering an amendment to S. 2992 that would cover Google's ad tech tools. Such language would prohibit the alleged manipulations Google employed in its advertising auctions, people familiar with the discussions said. Meanwhile, Sen. Mike Lee (R-Utah) is working on a separate bill focused on the online advertising market. Lee, the top Republican on the Senate Judiciary antitrust panel, so far hasn't offered support for the Klobuchar-Grassley legislation. Lee's bill would impose obligations on companies that have possible conflicts of interest and take in more than $15 billion in revenue from digital advertising, such as requiring them to act in customers' best interests. The legislation hasn't yet been introduced. For its part, Google denies the allegations of price manipulation. "The Bernanke program did not artificially increase prices for buyers in any way," spokesperson Peter Schottenfels said, saying the new complaint is "full of inaccuracies and lacks legal merit." The company also opposes the Klobuchar-Grassley bill, with Google-backed trade associations insisting it will harm the United States' global tech leadership, imperil national security and destroy conveniences beloved by the American public. STATES SHORE UP FTC AGAINST META — State attorneys general appealing the decision to throw out their suit against Facebook could help salvage the part of the FTC's case that was dismissed yet again last week. The appeal, which the D.C. Circuit is likely to hear later this year, will determine whether states — the most active antitrust enforcers this decade — have the same powers as the feds to challenge problematic deals after the fact. Judge James E. Boasberg dismissed the states' antitrust suit against the company now known as Meta last summer, finding the 48 attorneys general waited too long after the company's 2012 purchase of Instagram and its 2014 deal with Whatsapp to seek to block them. That decision misunderstands the allegations and antitrust law, the states said Friday. The passage of time has only amplified the problems with the deals, they said, since they helped Facebook cement its monopoly on social networking, collect more user data and boost ad sales. The states also said the judge was wrong to dismiss their allegations that Facebook violated antitrust law in cutting off rivals' access to its platform. Boasberg stood firm on that decision last week, when he ruled for a second time that the FTC couldn't pursue a case challenging the social network's access policy, which it changed in 2018, though he said the federal agency can continue challenging the two mergers. Meta's response: "We believe the District Court's decision dismissing the States' complaint was correct, and that there are no grounds for overturning that decision in the Court of Appeals," Meta spokesperson Christopher Sgro said. | 
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