12 Dec 2020
Professor Gus Hurwitz's chapter, Digital Duty to Deal, Data Portability and Interoperability, was published Nov. 11 in the Global Antitrust Institute's Report on the Digital Economy.
Part of Hurwitz's introduction is featured below:
"A “duty to deal” is a remedy commonly supported by advocates of more aggressive antitrust enforcement in the digital economy. The basic concept of a duty to deal is disclosed in its name: a duty to deal would subject dominant firms to a regulatory requirement to do business with a competitor. For example, a monopolist subject to a duty to deal may be required to sell outputs to or purchase inputs from its rivals. The idea of a duty to deal has a long history in industries that are characterized by network effects and economies of scale, such as telecommunications and railroads. For instance, the Kingsbury Commitment was a 1913 antitrust settlement that required AT&T to interconnect its telephone network with those of its rivals;[1] and the 1912 Terminal Railroad case required the operators of a railroad “essential facility” to allow competing railroad companies access to that facility.[2] The purported need for such duties to deal is that industries such as these—and such as the contemporary tech industry—may operate most efficiently (for producers and consumers alike) when organized as monopolies or oligopolies, which limits the viability of competitive entry and margins along which competition is possible. The appeal of an antitrust duty to deal is that the benefits of a dominant firm’s efficient structure may be preserved, and competition facilitated, by allowing competitors to offer their own services while making use of that dominant firm’s infrastructure. This outcome can be hard to realize in practice, however, as the potential of an antitrust duty to deal can create negative incentives for both dominant firms and their actual and potential competitors."