On 22 February 2022, NERA Managing Director and Co-Chair of the Communications, Media, and Internet Practice Dr. Jeffrey A. Eisenach participated in an American Enterprise Institute (AEI) webinar that explored the approval of the American Innovation and Choice Online Act (AICOA). The proposed legislation would prohibit large tech firms from engaging in well-established, common business practices such as self-preferencing their own products and protecting knowledge assets. AICOA approval could significantly affect the US tech sector by constricting US ingenuity and global competitiveness.

Dr. Eisenach examined the past half-century of antitrust enforcement, which he observed has been centered on the consumer welfare standard, while the proposed legislation shifts the focus to arbitrary metrics of firm size. Additionally, Dr. Eisenach noted that the AICOA, if enacted into law, would turn the tech sector into a “regulated industry” with constant government oversight. AICOA would inject substantial uncertainty into US antitrust enforcement, making it difficult for firms to know precisely what types of conduct are permitted.