Dec 09, 2025
On Thursday, December 4, The Capitol Forum hosted Joel Thayer, President of the Digital Progress Institute, for a conference call with our Executive Editor Teddy Downey. The conversation focused on the FTC’s recent decision in its case against Meta, and what it reveals about how regulators, courts, and advocates are interpreting Section 2 of the Sherman Act in the context of dominant tech platforms. We explored how this case – and others like it – are shaping the future of antitrust enforcement in digital markets.
The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: I’m Teddy Downey, Executive Editor here at The Capitol Forum. Thanks for joining us today. I’m really excited to host Joel Thayer, President of the Digital Progress Institute. He has deep experience in technology policy and regulation. His recent commentary on the FTC’s case against Meta has added important context to how Section 2 enforcement is evolving in today’s tech ecosystem.
Before we get started, really quickly, if you have questions, please enter them into the questions pane on the control panel. We’ll take questions. We’ll try to get to them at the end of the call.
But Joel, thank you so much for doing this. It’s a pleasure to see you.
JOEL THAYER: Teddy, likewise. It’s always fun chatting.
TEDDY DOWNEY: And maybe before we get into the heart of today’s conversation, which is Meta and Section 2 enforcement and tech going forward, I love your story about how you got into antitrust and just all the different things that you’ve done. Maybe if you could just walk us through a little bit of your background, how you got interested in antitrust and how you ended up where you are today, and maybe a little bit about what you work on at the Digital Progress Institute. And then we can dive into the Meta discussion.
JOEL THAYER: Yeah, totally. This is going to make me feel old because, I mean, always looking retrospectively forces one to realize their own mortality and how long they’ve lived. But I started off actually as a Hill staffer with Mary Bono on the House side.
And I’m primarily focused on telecom. And it was through the net neutrality fights — at that time, there was a significant question. It’s kind of old hat now — as to whether or not the FCC had the regulatory authority to regulate networks under a specific type of statutory regime called Title 2 of the Communications Act. And it was always like this political football that existed in Congress. And it was always determinant upon who was at the Commission or the Federal Communications Commission. But interestingly enough, there was this conversation surrounding whether or not the Federal Trade Commission had any authority over it.
And so, that was the start of my little antitrust journey. I didn’t realize it was going to be a lifelong career. It was one issue. And I got lucky. And my boss, Mary, was incredible. And she just let me, as a lowly LC, get my hands dirty and really grapple with the issue. Also, she sat as Chair of the Subcommittee of Commerce, Manufacturing, and Trade, which happens to be the Committee of Jurisdiction over the Federal Trade Commission.
So, there was this push and pull on the relevant committees within Energy and Commerce with respect to the FCC and FTC and their respective authorities on issues of broadband regulation and the like. But I guess I wrote enough good letters where my legislative director suggested I should go to law school. And I stupidly listened. And I ended up taking the LSAT, going to a school locally in D.C., American University. And I always knew that I was never the ‑‑ I’m not the most studious person. I will admit that on the front end. I’m a worker bee. I learn more hands-on than I do having a lecturer pontificate and extract answers by the Socratic method.
So, I decided to work full-time and go to school full-time, which was the dumbest decision ever if you want to get good grades in law school. But I think in that experience – ultimately, I don’t regret it. But at the time, I didn’t feel like I had a life. I mean, I still feel I don’t have a life. But I was able to secure a lot of really interesting clerkships. I was working on the Hill for like the first year of my law school career and then got to bounce around a lot of different areas. I got to work for the great Ajit Pai at the Federal Communications Commission during the Obama administration. This now is leaning towards my age. And then also moved over to the Federal Trade Commission to work with Maureen Ohlhausen.
And after that, just started to get into – after law school, I had a minor stand at a law firm, didn’t like it very much. Nothing against the lawyers and law firm itself, just not my bag. And as much as I enjoyed litigation, I just didn’t think that was really what I wanted to do with my life.
So, I come back to D.C. and I start freelancing as a writer of briefs. And a friend of mine was able to allow me to do a minor stint at the App Association, which was a technology policy outfit that supposedly represents small businesses, but I’ll leave that there. But in that experience, I was able to get even more in‑depth on these issues with respect to antitrust and the intersection between law and policy and technology. I was able to carry that over to a law firm and did some transactions on the M&A side, but mostly focused on regulatory compliance.
And I had some representations at the Federal Trade Commission, more at the Federal Communications Commission. But then I really got annoyed with how the conversations were developing. And there didn’t seem to be a home for someone like me and the way I thought about antitrust policy.
I’m obviously very ‑‑ I mean, I think it’s obvious if you’ve read my stuff — not obvious to many of your listeners who’ve probably never heard of me ‑‑ that I am a pretty strong and fervent supporter of antitrust, of robust antitrust enforcement. And seeing the shift in the conservative movement, I thought, was actually very exciting. We were able to actually look at Section 2 cases in antitrust where you look skeptically at these tech companies, which were formerly thought of as like the darlings of the American economy. I mean, you always hear about these – I mean, you hear about the opinion we’re going to talk about today where, oh, these folks started in like a garage and now they’re these major corporations and look how wonderful and good they are.
But then I always wondered, is that good? I mean, them amassing that much authority over our content, all the privacy violations that are associated with that massive collecting data at that scale, the inability for a user to go from one platform to another. I mean, even with regards to app stores too, I mean, you have like two operating systems. It’s just everything seemed to be consolidating and consolidating and consolidating.
But all the literature seemed to be either one of two things. Either you were a staunch advocate of the consumer welfare standard, which basically boiled down to a price evaluation and ignored a lot of these issues with respect to free services. Trump administration, I think, was turning it a little bit. And Makan Delrahim, who was the former AAG of Antitrust in Trump One, I think, really did start chipping away at this idea that the consumer welfare standard was only meant to do one sort of thing or evaluate one type of thing, and that’s the price differentials. He certainly did believe that, but I think he was looking into vertical mergers. How does that impact things? How do these non-priced harms work? And how do we evaluate that? The AT&T mobility case is a good example of folks grappling with the idea of how mergers or even antitrust enforcement can enhance innovation and how competition can ultimately enhance innovation. And looking more skeptically than preceding administrations, like in the Bush administration and the Obama administration, that simply granted a lot of these mergers because they were emerging markets.
But also, on the other side, you had like the let’s turn the screws. This was the neo‑Brandeisian types, right? Turn the screws on these companies. Thirty small companies is better than three big companies. And let’s try to figure out how we can give more equity to these smaller folks. And I think we’re starting to see ‑‑ we saw a lot of that in the Biden administration. Obviously, Chair Khan was pretty much a forward stalwart of that particular line of reasoning. Even though I do think there was a lot of consumer welfare stuff that she was throwing in there, especially with respect to some of the cases and the theories of some of the cases she was using.
But still, that idea of we’ve got to push back on mergers a little bit. We can’t just assume that everything is going to work out the way we think it is. And we shouldn’t just take random remedies that have nothing to do with the competition concern as a consolation prize for increasing more concentration in the markets. You saw that conservatives were actually starting to respond to that a little bit more. You see Senator Josh Hawley thinking through all those issues too.
But again, how this relates all back to me and my journey is that I looked at the literature and I was a little disenchanted with how the policy conversations were getting structured. It was almost as if there were two worlds that we’re living in. There’s the consumer welfare folks, and there’s the neo-Brandeisians. In all reality, there’s conservative views and liberal views. Whereas, just my experience in Congress and at different agencies, that’s never been the case when it comes to good policy. I’ve always viewed the political dynamics as being less of a T‑chart and more of a Venn diagram, where there are these overlapping and overarching principles and themes that seem to speak to all parties or both parties.
I wanted to have a think tank that talked about that. I was less interested in talking about the areas where we disagree and more focused on areas where there is broad agreement, and maybe we can push the ball forward. Now, it may not be the whole enchilada giant thing that will change landscapes, but I was very interested in the incremental progress. And I saw that in the inches, we were able to build miles. I just saw the way this literature was shaping up, whether you have – no offense to any of these organizations. They all have their bend.
I just didn’t see it particularly helpful that FedSoc was being put up against public knowledge, public knowledge was against the Cato Institute. There was just no one that spoke to someone like me who sees it as a more American principle that we want to push back on highly concentrated markets.
So, I developed, along with my friend Nick Degani, two PI people who have worked with both sides of the aisle on how to get things done. We created the Digital Progress Institute to meld the policy to demonstrate that there is actually wide agreement here, that there are Democrats and Republicans willing to go to the other side and talk it through. I’m happy to say we punched above our weight a bit. I mean, DPI is, I think, four years old. And we’re testifying in Congress. We’ve written several briefs in the Supreme Court. We are now very much involved in state legislation.
We’ve got at least three laws that we’ve helped turn into law. It’s been a pleasure working with not just my conservative friends, but also people on the more liberal side who I consider very good friends like Zephyr Teachout, even Matt Stoller. I mean, you would never think that someone like me and someone like Matt would be in the same room and looking at each other and saying, yeah, actually this is a little messed up and we should probably figure out paths forward.
But, I mean, that is my gratuitously serpentine way of getting into the space. But the short answer is that it was an accident. I just kept reading stuff and people kept telling me to do stuff. And I am doing a little bit of a retcon on how I got here. But it really was just whatever crossed my desk and whatever interests me, I just did. Thankfully, it turned out to a pretty consistent theme and cohesive strategy.
TEDDY DOWNEY: I want to stay on this for one more minute. I mean, that was just such an amazing story. And I want to follow-up with how you see aggressive antitrust enforcement lining up with your conservative principles and values. There are some themes that obviously cut across all people in a democracy. People want fairness and justice and things like that. But I’m curious how you see it, how you approach it, having worked for all these different people, Ohlhausen and Pai, your own shop, working together on a bipartisan basis. What are those principles and values that cut across all parties and our universal themes for the citizenry?
JOEL THAYER: Well, I think that antitrust, at its heart, is inherently conservative. It really is a pushback on this idea of concentrated authority over a particular thing. And even if you look at the history of conservatives, I mean, Senator Sherman was a Republican, right? The one who actually created the Sherman Act. And even after that, Teddy Roosevelt, who was a Republican, trust buster, really concerned with not just the concentrated authority that exists in the public sector, but also the concentrated authority that exists in the private sector. And realized that tyrannical regimes can pop up not just on the government side, but can also pop up very easily when it comes to monopolies.
And this goes all the way back to John Locke, too. I mean, Lockean tradition even reviews this and thinks through ideas of monopoly. You have the father of modern economics, Adam Smith. Adam Smith has a whole chapter on monopolies. This idea that there is one body that is going to control everything I think should raise the hairs of any ‑‑ or raises the suspicion of any conservative. And that to me, I think, had gotten lost a bit when there seemed to be this migration away from traditional conservative principles to more libertarian-type principles that viewed economic freedom as only being granted by one type of authority, and that is the private sector.
Whereas in actuality, that’s never been true. I mean, it just doesn’t gel with how markets actually operate. I mean, it presumes that the only way to achieve a free market is if the government just gets out of the way. And sometimes that’s okay, and sometimes that’s right. Sometimes the government needs to take a step back, maybe several steps back.
But that’s not always true, and that’s where antitrust is so integral to a modern economy. And I think that’s also why you’re seeing a lot of conservatives who are very, very concerned with concentrated markets in this space, and definitely looking at ‑‑ I mean, whether it’s social media, pharmaceutical stuff, look at what President Trump is even talking about. I mean, affordability. Affordability is, at the heart of it, an antitrust question. And who’s controlling the goods that are either raising prices, lowering prices?
But even on the non-price stuff, like the Google search case was brought by President Trump and his DOJ initiated several probes that bled through into the Biden administration. I mean, the case we’re talking about today, the Meta case, started under President Trump.
So, these are serious questions that I think not just conservatives, I think everyday people are worried about. I mean, the inundation that you’re getting from a lot of these companies, especially the tech companies, where they’re getting a lot of content that’s something they’ve never asked for or even want to engage with. But now these companies have ‑‑ they’re not just like these fun little apps that we use anymore. These apps are used for a whole host of different things that are very important to people. Getting their news sources, for instance, is a key function of a lot of these apps.
The other is actually job placements. I mean, I don’t even really use my Facebook anymore to connect with friends. I use it to show ‑‑ it’s basically like a weird advertisement of all the things that I’m doing in my professional life. And worse, when they apply for jobs, the first thing employers are doing is looking and scanning your social media accounts. I mean, heck, if you are going to work for the Trump administration, the first thing they’re doing is looking at your Twitter, looking at what you posted. And these things are becoming not just a separate part of your identity, they’re becoming, unfortunately, integral to part of your identity. So, if you made a mistake or said something untoward ten years ago, well, the internet never forgets, and someone will find it.
And so, I think that all of those things put together have put a context onto the questions that we’re discussing today, where everyone, whether you’re a Democrat or a Republican, liberal, conservative, or somewhere in between, is inherently skeptical of this. And I think that is integral to us being American. I mean, for God’s sakes, we have the separation of powers for a reason. It’s baked into our government.
So, this idea of pushing back on concentrated authority on both the private and public sector is not just a conservative principle. I think it’s just inherently an American principle.
TEDDY DOWNEY: I mean, yeah, I always think about Thomas Jefferson as an interesting figure in all this, who was fundamentally interested in distributed power. Obviously, conservatives are always talking about states’ rights. That’s fundamentally, just like what you’re saying, a distribution of power. It’s distribution of government power. But it also gets to this idea that power in the hands of too few is just not a good thing, inherently, on a bipartisan basis.
I love talking about history. We could do this all day. But let’s get into the meat of our conversation, which is the Meta case. And I think you did a good job of kicking us off by saying, hey, this was started under the Trump administration.
Would love to get your thoughts on why this is a conservative case or a case that makes sense for conservatives. And then let’s just jump right into, after that, what you think of the decision. Obviously, Judge Boasberg decided against the FTC and with Meta. But would love to get your take on both the case at large and then the most recent decision.
JOEL THAYER: Yeah. So, I think for conservatives, we saw the writing on the wall pretty early on when it came to these highly concentrated tech markets. And they were less of a ‑‑ it was becoming very clear they were engaging more. They were acting more than just being a bulletin board, right? I often like to say the distinction between a social media company and a bulletin board is the bulletin board doesn’t interact with you. There’s nothing that the bulletin board does other than just exist. And you can go post something, take something down.
Whereas, with social media companies, there is all this stuff happening in the background, all this manipulation happening in the background. And there’s all this distortion, content distortion, that happens in the background, where you’re not sure if you’re actually seeing something because you genuinely like it? Or is there a wizard behind the curtain pulling ‑‑ obviously, I just saw Wicked, so sorry. Sorry, you’re going to get some Oz references. You’re going to see some pulling of levers that you may not want. And also, who is pulling those levers? Again, going back to that inherent skepticism.
So, when Chairman Simons brought the case, I think that was at the core of really this question of monopolization. And you see that bleed through even in the Biden administration, which opted to continue the case on, and even now in the Trump administration.
But I think the best articulation of why conservatives are concerned about this actually comes from a statement Gail Slater said, who is the current Assistant Attorney General for antitrust for President Trump, where she said that this idea of private censorship seems to be a downstream effect of some market power, and maybe even be a monopolist, or maybe indicate more unlawful monopolization and something to investigate. So, I think that’s where the impetus comes from. Or that’s where the instinct comes from to go after a company like Meta.
Now, onto this case, I think it’s probably fair to say that this case has a weird Kafkaesque procedural history, and it hasn’t been a clean shot. And again, it spans over three administrations. So, there’s a lot of changeups. Like, you have changeups in leadership. You have maybe even staff that are changing everything up. You have a lot of resources getting dedicated based off different priorities.
But I think what it really came down to here was that the judges don’t seem to ‑‑ this judge is not unlike most other judges in this regard, where it seems that there’s a fundamental misunderstanding of what these markets are and how they operate and what they do. And as any practitioner knows, the issue of market definition is where your case, in an HS context, lives or dies. If you get a good market definition, you can have a more fruitful conversation as to what the harms are. But if you have one that’s so expansive ‑‑ and this is just my personal opinion ‑‑ as we saw in this case, it’s a tough sell, right? I mean, at that point, anything under the sun is a competitor or increases competition to Meta.
But I think the issue that this came down to, ultimately, was market definition. And if I can break down the key market definition question or issue, basically, it came down to this melding of two different products, one being a personal social media networking product, and also a short-form video product. And instead of looking at them, instead of one informing the other, or just adding more color to how the market is shaping up, or describing a little bit more of what ‑‑ instead of adding more color as to what the harms are, it instead became the coup de grâce for the FTC’s case, which was unfortunate. I mean, it’s a very, very odd posture.
So, just to give folks some background on some of the theory here that I think is bleeding through in the FTC’s case, which I think explains some of the failures that I see in this analysis from the Meta case, is that the idea that if you have a monopoly in product A, and layer something new in product B, even if you’re not a monopolist in product B, adding product B doesn’t somehow extinguish your monopoly in product A.
So, in this case, the fact that Meta is now getting more into a new product market — we’ll call it product B, the short-form video market ‑‑ doesn’t actually mean anything with respect to the original sin. So, again, I think that this is where the entire thing was completely misguided. And the idea that just because one product is getting larger, or taking much more of the ‑‑ which were Meta’s time, in this case, the product B market, which is not the social networking market, you get this sense that this judge is either confused as to how these markets operate, and also confused as ‑‑ this is a matter of law. And I think this exceeds even tech markets.
So, the FTC, in their supplemental brief, draws this really cool distinction as to why this idea is a problem when you meld it. And think about it in a brick-and-mortar context. They allude to a supermarket and being the only supermarket in town. And then they say, well, the supermarket originally did not sell pet food. And now they are selling pet food. So, now this supermarket, the only supermarket in town, is selling pet food, which means that it’s competing with Petco and other pet supply stores. But the fact that it has entered into a new market doesn’t mean that it’s not the only grocery in town.
So, just because even if the grocery store is selling the majority of its products being pet stuff, that doesn’t negate the fact they are the only grocer in town. You can’t go to PetSmart, for instance, and buy ingredients for lasagna.
So, these things are not the same. And so, I think the problem the court had here, what I think the judge struggled with, was that it seemed to be that Mehta was responding to some of the issues, or some of the competitive issues, that it got from TikTok — TikTok and YouTube and these short-form videos. And there’s all this, I mean, he dedicates a lot of time discussing the entrance of TikTok and these short-form videos, and everyone’s moving over here. And that must demonstrate they are in a monopolist, and Meta is somehow no longer a monopolist over here. But in the interest of law, that’s never been the case. That’s never been the case just because you enter into a new market that that somehow absolves you of your monopolization of another market, in a whole separate product market.
So, again, I strongly hope that we get some clarity on this. Because I don’t think that this is actually good in the long term, or even in the short term. And again, in my mind, this makes it very, very difficult for the government or even private plaintiffs to bring a monopolization case moving forward, if that’s how we’re going to think about it. I mean, these tech markets in particular are so vertically integrated, and there are so many products. They have a whole suite of products they are entering into where they don’t have a full market share. This seems to me like a get-out-of-jail-free card.
So, that means all a tech company would effectively have to do is say, your honor, don’t look at this product over here. We know we’re the monopolist over here. We know we’re the top dog. But look, we’re actually entering into this other market, and that’s where we’re spending most of our time. And we’re not the monopolist there. So, that should indemnify us for anything that we’ve done over here. Nothing to see here, folks. Let’s just focus on that. And I think that’s why you get this weird introduction of TikTok and YouTube being a natural supplement for Facebook.
But again, going back to the grocery store example, there are things that Facebook does that YouTube and TikTok just don’t do. Those are short-form videos and that’s it. There is no messaging. There is no posting. The interactions are completely and utterly separate.
So, even if you are okay with the result of the case, you shouldn’t be okay with how the court got there. And I think that, to me, is going to be pretty tough. And again, folks are like, well, whatever. It’s just the tech industry. The tech industry is going to get a pass. I don’t think so. I think you can apply this to pharmaceutical companies. I think you can apply this to groceries. I think you can apply it to a lot of different markets. Merely because if you just take out the subject matter and just take the logic on its face, what you’re effectively saying is that all you have to do as a monopolist is demonstrate you’re going into another market, and you’re not the top dog there. And all of a sudden, your antitrust problems go away in that other market. That is a complete deviation from the way we’ve attempted to regulate these markets. I mean, this goes back to Cellophane, and it goes back to a whole host of different cases. It goes as far back as Brown Shoe.
TEDDY DOWNEY: So, it sounds like you think there should definitely be an appeal here. But I also want to ask you about the judge also, I think, spends a decent amount of time talking about the timing and whether or not, oh, they’re still a monopolist. It’s like the FTC has to show right now that it’s a monopolist, and there’s some procedural FTC rules that the judge really harps on. What’s your take on his using the procedure of the FTC to facilitate this, hey, well, you’re not a monopolist right now in this separate market as well? Because that kind of jumped out to me as problematic, but I’m curious to get your response.
JOEL THAYER: Well, I think you’re referring to the FTC’s injunction authority and be able to prevent things from happening in the future. My reading of the statute doesn’t seem to indicate anything that what the court has said it’s for. It’s almost like he decided to raise the bar on when the FTC can actually do anything, which I think is incredibly problematic.
I mean, part of the issue here, I mean, going back to the timing issue. I mean, if you really want a good takeaway for this case, because I think you’re raising a good point. It’s like, one, there is a mechanism that the FTC can employ when they think that there is a harm about to occur or is occurring now. But there’s also this weird, contorted view that’s imbued in the opinion itself, where they basically said, I mean, without saying it, the judge is saying why didn’t you bring a Section 7 case at the time these mergers happened? Why did you wait ten years to do that or however many years to do this? You’re asking us to take the cream out of the coffee now that it’s mixed in. That may be a fair point, and I’ll leave that for the appeals process. And whether or not we get that, I don’t know. I hope there’s one, but maybe not.
But that seems to fly in the face of what he’s saying with respect to the injunction authority that the FTC has. The injunction authority is there as an emergency stop. Like, hey, let’s pump the brakes on this. We need to investigate this. We need to investigate what type of things you’re doing, so that way we can determine whether or not there is a competitive issue here before it’s too late.
So, to me, like those things, I was a head scratcher. In some ways, I was just, I was left okay. I don’t even know how this helps me understand, even as a practitioner, when this authority is appropriate or not appropriate. And there was this whole conversation about retroactivity and looking back. The statute was never meant to look backwards. It’s meant to look forwards.
And true, that’s absolutely it. But that doesn’t mean that the FTC ‑‑ when trying to use its injunctive authority ‑‑ that doesn’t mean they can’t look back and say, look at all this stuff that’s already happened, and we think that it’s going to happen again. Like those two things aren’t the same thing.
And so, I think that there was this, I won’t even say overreaching. I’m not sure how the judge squares the circle on that. Because on the one end, you’re saying you should have brought this case years ago. And on the other end, you’re saying, don’t stop the harms now. I’m like, that, to me, is a bit conflicting and was very confusing.
TEDDY DOWNEY: Yeah, it’s interesting that on the Google case, you got a judge who said, this was illegal, right? A lot of stuff what you’re doing is illegal and you’re a monopolist. But it’s been so long. And there’s AI now. And so, it’s okay. And so, there’s a lot of really rigorous stuff in that on the law. And then a lot of kind of like –
JOEL THAYER: Forecasting. Yeah, it’s weird forecasting.
TEDDY DOWNEY: Like what I think of this market now, as opposed to this kind of rigorous assessment in the remedy. And then in the Boasberg decision, you get this like a convoluted way of saying, well, there’s TikTok now. It’s almost like, well, we’ve got a lot of years that have gone by, and now there’s TikTok. So, we don’t need to worry anymore. I’m curious the length of the cases, creating this opening and sort of an intellectual challenge for judges to feel confident that the harm that is still relevant, right? Because you’re like, oh, a lot’s changed in ten years.
JOEL THAYER: Or five years, yeah. So, my response is that I have long advocated for a rocket docket, or that Congress should create a rocket docket for these types of cases. And I think you were alluding to the Google search case when you were talking about the entrance of AI. I think AI played a role here, but that was used as more of an inflection point on when the market may have required Meta to go into the short form video. But this was very prevalent in the Google remedies case, where we got this — which was very odd, because we got this very odd — I mean, Judge Mehta was very, very clear. Like, he says it outright. Google is a monopolist. And he has a 90-plus page opinion talking about how all these harms existed, the government has demonstrated its case. We have Google dead to rights.
And then you get this remedy opinion, and he’s like, well, I mean, yeah, they’re a monopolist. All right. They’re really bad. But AI is changing everything. And I have to, as a judge, sit with a level of judicial humility when approaching these cases. And I am looking at it. And I have to take a very conservative approach to this. But that humility seemed to be out the door when he started talking about the future of AI. He went from being a judge to a technologist, or at least a forecaster, and basically justified allowing Google to do the precise things that made them a monopolist in the general search engine market.
So, in the remedy case, he goes out of his way to talk about how these contracts between Google and Apple are problematic. And the defaults are problematic. And then says we can’t do anything about it because AI completely changed that. So, Apple, Google, feel free to keep on keep on keeping on. And then as soon as that happened, guess what? Apple and Google start partnering on Gemini. And so, now Gemini is going to be incorporated into the iPhone, which, okay, so we’ve just recreated the problem that you just said was a problem.
But it goes to your point of like ‑‑ and I think you saw that here, right? It’s almost as if the court was saying ‑‑ not almost, I think it was saying ‑‑ that if we were deciding this six years ago, five years ago, before TikTok was really a thing, then this would be a much stronger case. But my take is that it’s still a strong case today. Just because — again, this goes back to, I think, the original opinion, which is just because they enter into new markets ‑‑ I think that this is true for the remedy case too with Google. Just because they’re entering into new markets doesn’t mean they have somehow absolved their liability under antitrust law in another market.
Like, if you monopolize product A, product A market, and you are now a new entrant in product B, there’s no weighing of scales, again saying, okay. Well, I guess you’re not monopolist anymore because you’re moving over. Like, well, no, you completely monopolize an entire market. There’s still market harms here. There are still remedies that the court should evaluate.
And so, part of it comes down to, I think, judges really being hesitant to enter into these more stringent remedies and structural remedies when it comes to these particular markets, because frankly they think it’s new. They think that these are new hip companies. I don’t want to stand in the way of innovation. I don’t want to stand in the way of the next big thing. And I don’t want my name to be associated with killing the next technological innovation.
But, I mean, I’ll be very frank. I don’t think these companies have been innovative for the past ten years. I mean, Google Search really hasn’t changed. I mean, in fact, it’s gotten worse than it’s gotten better. Apple has not seemed to change at all in terms of how they operate. I mean, like this phone gets thinner. But at some point, it’s still the same product over and over again. Even though they’re entering into like different markets on like wearables and everything else, it doesn’t mean that it hasn’t monopolized the smartphone market?
Like this is where I think you’re starting to pick up what I’m throwing down here. Where like, if we’re going to go down this track of let these companies completely monopolize a market just so they can leapfrog over or go to another lily pad and monopolize another lily pad or be a smaller frog on another pond. I don’t see how we can ever hold these folks accountable ever. Like, it just seems that it’ll be a game of whack-a-mole where the defense is going to be, well, yeah, we were totally a monopoly. They can actually, I think Meta would be well within its rights to just resubmit it. Like, yeah, we totally monopolized the social networking market, but we’re in this market now. We’re not even dealing with that market. So, yeah, just send us the bill for whatever you think that we did. And then we’re just going to keep on monopolizing another market and then we’ll deal with this in another five years.
So, again, I think that it is absolutely true that these elongated litigations have really colored a lot of how the judges see it. And, I mean, they, like every other human, are seeing these companies change their products ever so slightly. But frankly, does anyone really buy that if we got rid of Facebook, that TikTok can make up for all of it? I mean, the market base is even different. I mean, the user base is different. The way they generate ads are different. Like it’s their engagements are different and that’s by design.
So, I mean, this to me just seems ‑‑ I just don’t understand. Again, going back to like this Maxim, I do not know how the judge squares the circle. But I do think that the amount of time it took to get here influenced how the court ultimately shaped it up. And I think that happened with Judge Mehta and the remedy decision. I mean, these guys go from being strict judges to technologists and forecasting where they think markets are going. Which there is an element of that in what the judge has to do in terms of forecasting. But there’s no way for anyone to know that AI is going to like completely change and redirect markets.
And look, we’re already seeing it. I mean, just today, Google just surpassed open AI in the AI market. So, the same people are doing the same stuff in that market that you say is the countervailing fact of it not being a monopolist.
TEDDY DOWNEY: Yeah, and it seems like Google’s behavior got much more aggressive after they won that case. After they realized they weren’t going to be punished for the type of conduct they were engaged in in search, they just turned around and started doing a lot of those same practices on AI. As you mentioned, the partnership with Apple.
JOEL THAYER: One hundred percent.
TEDDY DOWNEY: And here we are. I think it’s funny. All the reporting is about how, oh, open AI is now vulnerable to this ‑‑ it’s like a competitive threat, as if it’s a level playing field. I think it’s funny how people just completely forget about these —
JOEL THAYER: How much money these companies have to be able to invest in all of this and take over markets pretty easily. I mean, it’s a pretty huge advantage if you are a trillion dollar giant going into an area where there’s only a few billion dollars in any of these companies. There’s no way you’re going to compete. You’re going to opt to get bought. And we’re going to be facing the same issues over and over again.
So, what this tells me, if you’re a regulator, that means you pretty much should ramp up your Section 7 cases. Because if on the one end, like when you look at the Meta decision and you look at even the Google search decision, you’re like, okay. Well, you basically should have stopped this earlier and you didn’t.
So, to me, this rings of you should have stopped. You should cut it off at the beginning. And again, this goes back to ‑‑ but I don’t think anyone ‑‑ like I’m a little hesitant to even like go down that route as a policy. But the courts don’t seem to be giving us any other options here.
So, basically, we can’t hold you accountable when we find you dead rights with Google. And even if a court agrees that a company is a monopolist in one market, the fact they’re entering in another market is now a weird get out of jail free card. I mean, I do not envy Gail Slater and Chair Ferguson’s position when bringing Section 2 cases.
TEDDY DOWNEY: We’ve got a few questions here. We’ll try to get to the questions from the audience. But let’s talk a little bit about what we are likely to see going forward. You know, we still have a lot of ongoing Section 2 cases. We’ve got the ad tech case at DOJ. We’ve got Apple, Amazon. And we’ve been writing about how DOJ has been considering a case against United Health for over a year now.
How do you see Section 2 enforcement as a priority and the politics around it? Obviously, you are a conservative with a very aggressive sort of posture on antitrust. How do you see the Trump administration from a political standpoint? Obviously, there are just a lot of competing factions and things going on. How do you see the political environment and sort of the legal environment for AAG Slater and Ferguson when it comes to these Section 2 cases?
JOEL THAYER: It’s a tough question, man. So, I mean, well, there seems to be a few in there, but the two that I’ve surmised is like is Section 2 still like the right path forward? And should they think of other avenues? I mean, I think Section 2 is still going to be very powerful, especially in the healthcare markets. Healthcare markets are much easier to assess because there’s prices involved. It’s easy to determine exactly where the consumer harm is versus some of these larger tech companies.
I think the thing that I’m starting to pick up from these cases is that they are trying to figure out what the consumer harm actually is and trying to grapple with that, especially when you have like free services and offering free services or popular services like Amazon. I mean, those cases are, I think, tougher to grapple with on a Section 2 basis, but I still think they’re worth fighting for.
And we might be moving the needle a little bit. Personally, I would like it if Congress clarified some of the role of these agencies via some antitrust litigation. I think we’ve done the experiment and we’ve seen the contours of antitrust law. I mean, a fair reading of the antitrust law says that the antitrust laws, as written today, are perfectly sufficient. But it seems that the courts don’t feel that way. And the courts seem to want to pull it back to more Chicago School era type of analyses, which there’s nothing wrong with it. And I think there’s a solid case to be made that that’s how the statutes ought to be read. But that means if the courts are having a hard time grappling with it, even if they say, yeah, you violated the law, but we can’t do very much about it, it means that Congress might want to step in and maybe clarify a few things. And I think that there’s some appetite.
You’d mentioned the Apple case. The Open App Markets Act has been submitted, and that deals with at least a portion of what the DOJ has brought forward. It doesn’t deal with all of it, but deals, I think, with some of the more acute harms in the app store market. You have the America Act. You mentioned the ad tech case. The America Act addresses that issue as well. Maybe not as direct as the ad tech litigation itself. But basically, this does do a lot of work in dealing with this, I guess, dual representation that you have with these ad exchanges where the ad exchange also owns both the sellers and the buyers of the ad market. Being able to clarify those roles and what is allowable and disallowable would go a long way in resolving these issues.
But in terms of the politics, I mean, that’s a good question. Who knows? I mean, the way I see things gaming out is it has to fall into President Trump’s agenda. And President Trump’s agenda right now is, rightfully, focused on affordability. And so, healthcare, I think, is going to be right up there. Pharmaceutical companies are going to be probably in the line of fire. I think insurance companies are going to be in the line of fire, mainly because that’s where most of the medical costs come from. And so, and you’ve been seeing hospitals or monopolies getting investigated. So, I think that is going to be a big issue.
Obviously, renting is going or the housing costs are going to be a big issue. If I were BlackRock, I’d be a little bit more afraid that ‑‑ a little bit more terrified than how they’re behaving now. Especially how there seems to be clear indications they are manipulating housing markets and housing costs and prices. And you already have the FTC and the DOJ very skeptical of BlackRock’s entrance into energy markets and how they’re manipulating companies and going into one direction or another direction, which raises the cost ultimately for low-income people to put gas in their cars. So, I think in terms of the politics, keeping it on the affordability train is probably going to be your sure shot type of case.
The tech stuff is a little tough. I mean, it’s clear that the administration has signaled they are more interested in a deregulatory approach, especially when you hear some of their AI rhetoric. I think some of the conversations surrounding it are a little overblown, as if merely saying that we want to deregulate some aspects of AI doesn’t mean that we’re not going to do antitrust enforcement at all.
I think if there is a good case to be made that a particular AI product is being monopolized by a particular firm, I don’t know if the President will put his thumb on the scale one way or the other. And from all my reads and conversations with the admin, it seems that the President had full faith in Gail Slater and her ability to bring these cases. And it’s pretty clear that she doesn’t feel the heat either. I mean, she’s still looking at these markets. It seems that she’s still interested. I don’t have personal knowledge one way or the other on investigations. But she’s made it very clear in her speeches that this is a market of concern, whether it’s the tech market, healthcare market or housing markets.
I think that you’re going to see a very strong pivot to affordability concerns. So, firms that impact food prices, firms that impact healthcare costs, firms that impact cost of living. I mean, you saw that already with that action against the hospice providers.
So, that’s my read of like the politics of it. And I’m sorry, it’s a little bit wonky. But it’s just the way I think all of this is panning out and where I see that DOJ is having the most success, at least in terms of not being pressured one way or the other, either by external forces or internal forces. The pressures are kind of absent when you get to affordability concerns. Because I think the President actually does really want ‑‑ I don’t think. He said I want this to be my staple. I want to make sure that people can afford stuff and afford stuff that they need. So, that’s how I see it.
TEDDY DOWNEY: You mentioned the Meta case, obviously, having big presidential importance here and creating a reason for appeal. With the next upcoming case, I personally see a huge amount riding on the ad tech remedy. Because that is where the government seems to be most confident that they’re going to get more structural, more complete, relief and not a big win for Big Tech. What do you think about when it comes to the stakes of that decision and how much in terms of how that could affect the other Section 2 cases that are going to come later, the sort of willingness to continue and things like that?
JOEL THAYER: Yeah, the ad tech case I always felt was the strongest case out of the Google cases from the outset. I mean, that not to me was just a straightforward pricing question and something that I think even the court ‑‑ I think the court wasn’t confused at all. I mean, you saw that the court didn’t buy the duty to deal defense that has worked so well for other companies, especially with Live Nation, and I think the duty to deal defense.
So, when it came to that case, when it came to that decision, that really signaled to me, okay, this might be the area where we’re going to get a structural remedy. And I still feel that way. I know that there’s been readouts that have said the court seems to be wavering a bit on is it appropriate to separate? Because the court’s dealing with three different markets, right? And said that Google basically monopolized two of those three.
But to your question, what happens ‑‑ I’m contextualizing the question for me ‑‑ what happens if it goes in favor of Big Tech over those who want antitrust enforcement? I would say that this would be pretty damning. I mean, this is an easy case. I mean, if we can’t separate Google’s stranglehold over ad markets. I mean, it’s a clear monopolist. I mean, there’s not even a question about it. And it’s not like you don’t have the same issues that you have in search where you can bring in AI and say, oh, look. I mean, the way Google has engaged with ads has completely changed. You just don’t have the same pitfalls in ad tech that you have in search.
So, if we get a pretty weak remedy out of it, I would think that this would be a pretty damning blow to the antitrust movement. I think it would signal pretty heavily that we’re going to need some congressional oversight on this, or at least some congressional influence, to help courts navigate what Congress actually wants from these antitrust statutes.
TEDDY DOWNEY: We’ve covered a lot of these questions that we’ve gotten from the audience. So, maybe the last thing, just to go back to this congressional angle, you talk about these cases as sort of in dialogue with congressional action. Do you see Congress really engaged and really interested in solving these Big Tech concentrated power issues? And are they following the cases the way that you’re talking about? Oh, there’s a dialogue here. While we were being told, hey. The antitrust laws are enough. It’ll be fine. These cases are being brought and there’ll be won. How do you see Congress reacting and where Congress is? I mean, you’ve already talked about a couple of the bills, but curious if part of the lobbying on this all along has been, oh, there’s already a case. You don’t need to be involved in whether or not some of the problems, when they’re run into court, kind of adds momentum to some of this legislation.
JOEL THAYER: I think it does. And I think people were rightfully shocked when the remedy decision came out. I mean, those watching, I think everyone fully expected this is going to be a weak remedy. I don’t really run into any other antitrust lawyer that didn’t fully anticipate that we were going to get a great liability decision, that we’re going to get a weak remedy one.
But I think the American public was really shocked. Like, wait a minute. So, what was this? Like, we heard for months that Google was a monopolist and needed to be stopped and then nothing happens. Like what is the point of antitrust law if it’s not to rectify some of the problems that we’re seeing in markets?
But I think that these types of cases, or these opinions, open the door for — it cuts against tax argument and some of the libertarian arguments that the current laws are enough. And I think that the lobbying would have to pivot a bit. And they’re going to have to make the case that, well, the courts were evaluating this and said we did nothing wrong. And then you have this mountain of evidence that says they are doing something wrong. And at some point, something’s got to give here and I don’t think it’s going to be —
So, I think that one of the problems the antitrust reform movement had in Congress was that these cases were there and that there was a plausible argument that the antitrust laws will prevail. So, we don’t need to update them. And I think that is getting chipped away a bit. I think it’s still there to a certain extent. I don’t think it’s completely gone. But I do think that it’s getting far less plausible that the toolkit that Congress has afforded enforcers and consumers and courts is enough.
And again, I think the tech sector is probably the best example of this. Let’s look at the legislation, right? You have Apple. The Apple case deals with that. And the Epic case deals with that. I’m hearing rumblings that ECOA might be dropped soon. That, I think, speaks more to like the Amazon cases and the Google search cases to some degree. And then you also have the America Act. That’s obviously the ad tech case.
So, my guess is that we’re probably going to see at least some interest and intrigue. And Senator Grassley, who chairs the Senate Judiciary Committee, is not a shrinking violet on these issues. He’s been very clear that this is a priority for him in his office. But, I mean, only time will tell.
But I think right now, the primary focus in Congress is child safety. So, I just testified in front of the Energy and Commerce Committee on child safety. And one of the questions that I received from Representatives Cammack and Tran was Apple’s monopoly power and how that has impacted child safety.
So, I think that some of these legislators are seeing the intersection between monopoly power and action and consumer harm, and the consumer harm more specifically consumers that are children. And I’m not sure that tech is going to have an easy time extrapolating themselves from their monopolistic or market power from the harms they are allegedly committing. I shouldn’t say allegedly. They are definitely committing, especially when it comes to kids.
So, I think if we get poor remedy cases, the poorer the remedy cases are, the more likely we’re probably going to get a change in the law. And in terms of appetite, I think legislators are starting to see the connection between the monopoly power and the consumer harm. I think the child safety is opening the door to that. And I think that you’re probably going to see more rhetoric in that vein.
TEDDY DOWNEY: You’ve been very generous with your time. I’m going to ask you one more question. Because we’ve done so much work recently on roadblocks. Has roadblocks come up as a child safety concern on your radar, on Congress’s radar? Because we’ve been looking into this. It seems like a big problem. It’s okay if it’s like, oh, Big Tech is just a much bigger problem. I get it. But has that come up at all in your conversations?
JOEL THAYER: Yes, it’s actually a major issue that legislators are dealing with. I mean, they were shocked. I mean, Roblox was kind of insane. And the fact that kids were even able to access some of these parade of horribles on their system, I think, indicated that these tech companies, without any oversight whatsoever, don’t care about what happens on their platforms. There’s this callous indifference they seem to have. And these parental controls that all of these companies, whether they’re big or small, say they have, are ineffective mainly because there is no accountability. I liken it to a sort of Damocles that just doesn’t exist. Like they don’t have a sort of Damocles over their head to do the right thing.
And I think that companies like that have opened the door for this not just to be a Big Tech problem. This is a tech industry problem. And I think now more parents are waking up and saying, we don’t want our kids on this stuff. And they’re challenging even the basic notions they once believed were true. Like the age ratings from Apple’s app store are actually accurate. And I think Roblox is rated four plus.
And so, they’re looking around and saying, wait, wait. I thought Apple was a trusted brand. Google’s a trusted brand. They told us this was fine. And look what happened. And I put all the parental controls they said I had, and somehow they don’t work.
And then you find out through like good reporting that might be intentional. That might intentionally be that Big Tech potentially is putting forward weak parental controls on all these issues. And maybe if they’re not directly engaging in the deception, are turning a blind eye to how these companies are describing themselves.
And again, we wouldn’t accept this in any other context. I have no idea why we’re accepting this with kids. I mean, the Roblox question really comes down to (1) what is being offered? Are these child safety measures that the tech companies offer enough? It’s clear that they’re not. And I think that’s going to be a poster child for everything wrong with the tech industry.
TEDDY DOWNEY: Joel, fascinating, fascinating conversation. I love your organization, your willingness to sort of be an entrepreneur in this space. It’s inspiring. And the way that you study history and rigorously look into things, I think, couldn’t be any more in line with what we like to do here at The Capitol Forum. So, it was a pleasure speaking with you and really just can’t thank you enough for doing this today.
JOEL THAYER: Well, Teddy, I have one plea then. If I can just take you around and have you introduce me the way you just did, the way you just concluded, I’ll be happy to do this anytime you want. But I’m always happy to talk to you. So, it’s always fun. And yeah, I hope everyone got something out of it.
TEDDY DOWNEY: Yeah, and thanks to everyone for joining the call today. This concludes the call. Thanks everyone. Bye-bye.
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