filed yesterday marks a historic test of the century-old antitrust law by the Federal Trade Commission and could reshape how competition law is applied, a former agency chair says.
Now a global competition law professor at George Washington University Law School, Kovacic was a Republican FTC commissioner from 2006 to 2011 and served as chair during the end of the George W. Bush administration. The following interview has been edited for length and clarity.
And the crucial feature of the case will be the arguments that Amazon marshals against it, both attacking the FTC’s version of the facts, that is, has the FTC correctly interpreted what it’s looking at, but also add its own view about how the behavior in question arguably made the experience of users better than it would have been otherwise. That’s the heart and soul of the debate in the courtroom.
There has been a lot of debate about whether antitrust law is fit for purpose in this modern digital era of business. I mean, the reality is that the federal laws Amazon is accused of violating here were passed in 1890 and 1914. Is the FTC taking creative liberties here in how it is applying those laws?
The case is a clear effort to apply a number of concepts that have appeared in the commentary about competition law in the past 20 years. One is to appreciate that businesses don’t simply use one technique to succeed. They use a variety of strategies.