A Poor Case for a “Digital Platform Agency”

For the past twenty-five years, the U.S. Government has increasingly looked to antitrust—rather than regulation—to protect consumers in the Internet Ecosystem. There is a growing school of thought that an antitrust-only approach has failed and is ill-suited for the Internet Ecosystem. Reform advocates worry the giant Internet Platforms—primarily Apple, Facebook, Amazon and Google—have grown too large and too dominant under antitrust’s watch (or alleged lack thereof). The unbridled growth of big tech along with the high evidentiary requirements and slow pace of antitrust cases have some reformers looking for alternative forums for oversight—forums with a more anticipatory, immediate, and interventionalist perspective. This paper examines one such proposal by former Federal Communications Commission (“FCC”) Chairman Tom Wheeler and his co-authors Phil Verveer and Gene Kimmelman (hereinafter the “Wheeler Proposal”). Dissatisfied with existing regulatory institutions like the FCC and Federal Trade Commission, along with the long-standing consumer welfare standard under antitrust law (which the authors summarily dismiss as a “conservative litmus test for judicial appointments”) the Wheeler Proposal calls for the creation of a new “Digital Platform Agency” or “DPA”—complete with its own novel governing statute. Central to the argument for the DPA is that with the combination of “Digital DNA” and “cooperative engagement” with the industry, this new DPA will somehow be different from existing regulatory agencies and thus fully capable of regulating dynamic markets with minimal intrusion. The reality is that the Wheeler Proposal’s desired new statutory framework would give the DPA broad and unchecked regulatory powers over the entire Internet Ecosystem—including both tech platforms and Internet Service Providers alike.