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From Antitrust Law Daily, April 15, 2016

President Obama announces steps to increase competition

By Greg Hammond, J.D.

President Obama today issued an executive order outlining “Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy.” The order requires federal agencies to submit potential actions each agency can take to promote competitive markets, which will be followed up with recommendations for agency actions and timelines for completing those actions.

“Maintaining, encouraging, and supporting a fair, efficient, and competitive marketplace is a cornerstone of the American economy,” the executive order states. However, “Certain business practices, such as unlawful collusion, illegal bid rigging, price fixing, and wage setting, as well as anticompetitive exclusionary conduct and mergers stifle competition and erode the foundation of America’s economic vitality,” causing “higher prices and poorer service for customers, less innovation, fewer new businesses being launched, and reduced opportunities for workers.”

Consequently, President Obama is calling on agencies to submit, within 30 days, an initial list of (1) actions each agency can potentially take to promote more competitive markets; (2) any specific practices, such as blocking access to critical resources, that potentially restrict meaningful consumer or worker choice or unduly stifle new market entrants, along with any actions the agency can potentially take to address those practices; and (3) any relevant authorities and tools potentially available to enhance competition or make information more widely available for consumers and workers.

Second, within 60 days, agencies must report to the President recommendations on agency-specific actions that eliminate barriers to competition, promote greater competition, and improve consumer access to information needed to make informed purchasing decisions. The recommendations must include a list of priority actions, including rulemakings, along with timelines for completing those actions.

The White House Council of Economic Advisers simultaneously issued a new issue brief describing the benefits of competition and indicators of market power.

Set-top cable box competition. In line with promoting competition, the President also announced today that his administration is calling on the Federal Communications Commission to open up set-top cable boxes to competition. The move will purportedly allow companies to “create new, innovative, higher-quality, lower-cost products” that are cheaper to own (rather than renting) and will integrate everything consumers want—including cable or satellite content, and online streaming apps—into one gadget.

Competition enforcers don’t have a “monopoly” on encouraging competition, FTC Commissioner Terrell McSweeny said in discussing the Executive Order. In remarks delivered at Loyola University Chicago School of Law’s 16th Annual Loyola Antitrust Colloquium today, McSweeny said that the President’s move will encourage government agencies to think about competition in the course of their regulatory missions. The commissioner suggested that this action will serve as another tool in the antitrust tool box.

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