Regulating Big Tech: Lessons From the FTC’s Do Not Call Rule

27 Pages Posted: 1 Mar 2022 Last revised: 14 Sep 2022

See all articles by William E. Kovacic

William E. Kovacic

George Washington University - Law School; King's College London - The Dickson Poon School of Law

David A. Hyman

Georgetown University Law Center

Date Written: September 14, 2022

Abstract

Big Tech (Amazon, Apple, Facebook, and Google) is under regulatory assault. Cases have been brought against each of these companies in multiple countries around the world, but there is an emerging consensus that more needs to be done – most likely in the form of ex ante regulation that prescribes rules of conduct for dominant information platforms. The European Union and the United Kingdom are well on the way to establishing such frameworks, and the United States appears poised to undertake similar measures in the coming years. Most of the debate has focused on the case for ex ante regulation of Big Tech, with much less attention to the complexities of developing and implementing such regulation.
This is not the first time that regulators have sought to use ex ante regulation to govern a technologically dynamic sector of the economy. In 2003, the U.S. Federal Trade Commission (FTC) promulgated its Do-Not- Call (DNC) Rule, which allows individuals to block unsolicited commercial telephone calls by enrolling in a national registry. The DNC Rule provides a useful case study of the complexities of developing and implementing ex ante regulation of a dynamic industry in the face of substantial legal, technological, and political risks. We identify a series of lessons for those now seeking to use similar strategies to regulate Big Tech.

Keywords: FTC, Big Tech, Implementation, Antitrust, Rule-making

JEL Classification: K21, K23

Suggested Citation

Kovacic, William E. and Hyman, David A., Regulating Big Tech: Lessons From the FTC’s Do Not Call Rule (September 14, 2022). GWU Legal Studies Research Paper No. 2022-23, GWU Law School Public Law Research Paper No. 2022-23, Virginia Journal of Law and Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4042914 or http://dx.doi.org/10.2139/ssrn.4042914

William E. Kovacic

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202.994.8123 (Phone)

HOME PAGE: http://www.law.gwu.edu/faculty/profile.aspx?id=1731

King's College London - The Dickson Poon School of Law

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

David A. Hyman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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