Competition Advocacy: Promoting the Competition Mission

The Department of Justice’s Antitrust Division is the Executive Branch agency with the core mission of protecting and promoting competition through enforcement of the antitrust laws, and the Division works tirelessly to ensure that the American consumer benefits from the fruits of our work.  But other federal agencies and the 50 states frequently also share our goals and can help promote more competitive markets and break down barriers to new competition through rulemakings and legislation.  That’s why the Division doesn’t stop with just enforcing the antitrust laws.  Instead, we also regularly provide our competition expertise, both formally and informally, to our colleagues across the federal government and in the states.  Working together, we can better ensure that consumers reap the benefits of competition through lower prices, higher quality goods and services, and unmatched innovation.  

The importance of our work with federal agencies was elevated by the President’s Executive Order on competition, which encouraged other federal agencies to think about how they can incorporate the competition mission into their day to day work.  The Division has regularly collaborated with the Federal Communications Commission, the Federal Energy Regulatory Commission, and the Departments of Transportation, Agriculture, Commerce, Defense, Energy, and Health and Human Services, to name a few. I’d like to highlight some examples of our competition advocacy that demonstrate this critical aspect of the Division’s work.

Recognizing how important competition is to the millions of cell phone users in our country, the Division supported the FCC’s efforts to promote competition among wireless carriers through the 600 MHz spectrum auction.  The Division’s comments emphasized the importance of ensuring that smaller nationwide wireless carriers, which often lack low-frequency spectrum, have a meaningful opportunity to acquire the spectrum necessary to compete vigorously.  This competition forces all carriers to work harder to provide consumers with better choices, prices, and service.  

Similarly, air travelers benefit from our work with the Department of Transportation (DOT).  In 2015, the Division brought suit to stop United Airlines from acquiring additional takeoff and landing slots at Newark Airport, alleging that United was already dominant and underutilizing its slots in order to keep them out of the hands of competitors.  Not long after, the FAA eased the slot regime at Newark, paving the way for more competition from low-cost carriers.  We have also advised DOT about our concerns with antitrust immunity for international airline alliances and the benefits of imposing limitations on such immunity.  We commend DOT for factoring in the importance of competition when it recently denied American and Quantas’ request for immunity and required Delta and Aeromexico to divest slots at JFK and in Mexico City in order to gain approval of their alliance.  Another key condition requires Delta and Aeromexico to reapply for antitrust immunity in five years, providing both DOT and the Division with a chance to analyze the alliance’s impact on consumers and reconsider whether it should be continued.

States also play an important role in fostering more competitive markets for the benefit of consumers.  If you have ever had to fill out a basic legal form, you’ll appreciate recently enacted North Carolina legislation, on which the Division commented, that permits interactive software to generate legal documents based on the consumer’s answers to questions, eliminating the need to hire a lawyer for these basic services. 

State laws and policies can play a significant role in improving competition among health care providers.  For example, the Division supported Michigan telehealth legislation, recently signed into law by the Governor, for its potential to enhance consumer health care options and lower costs for services that can be appropriately provided through telehealth services.  The Division also commented positively on legislation in Massachusetts and Puerto Rico that would allow optometrists to treat glaucoma in certain instances thereby increasing competition and expanding access to care.  But states can also sometimes hinder competition.  State certificate of need laws, though they vary by state, generally require state approval before health care providers can offer new or expanded services.  This requirement effectively shields incumbents from competition, limits consumer choice, and stifles innovation.  The Division has long supported efforts by states, most recently South Carolina and Virginia, to curtail or eliminate these laws.

Competition is an essential cornerstone of the American economy and the Division uses all of its tools to ensure that markets in the United States are as competitive as possible.  While enforcement in district court plays a key role in protecting our markets from anti-competitive transactions and conduct, our work with  federal agencies and the states helps us  accomplish even more for the benefit of  American consumers. We are encouraged by the work that our federal and state colleagues have done on behalf of competition and the Division is committed to providing its expertise wherever and whenever it is needed to continue the innovation, investment, and all of the consumer benefits that flow from robust competition.