[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1073 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1073
To amend the Clayton Act to prevent conflicts of interest and promote
competition in the sale and purchase of digital advertising.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 30, 2023
Mr. Lee (for himself, Ms. Klobuchar, Mr. Cruz, Mr. Blumenthal, Mr.
Rubio, Ms. Warren, Mr. Schmitt, Mr. Hawley, Mr. Kennedy, Mr. Graham,
and Mr. Vance) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Clayton Act to prevent conflicts of interest and promote
competition in the sale and purchase of digital advertising.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Advertising Middlemen Endangering
Rigorous Internet Competition Accountability Act'' or the ``AMERICA
Act''.
SEC. 2. DIGITAL ADVERTISING TRADING TRANSPARENCY AND COMPETITION.
The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting
after section 8 (15 U.S.C. 19) the following:
``SEC. 8A. COMPETITION AND TRANSPARENCY IN DIGITAL ADVERTISING.
``(a) Definitions.--In this section:
``(1) Brokerage customer.--The term `brokerage customer'
means a person who has purchased or sold digital
advertisements, or directly related goods or services, through
a buy-side brokerage or a sell-side brokerage.
``(2) Buy-side brokerage.--The term `buy-side brokerage'
means a person in the business of effecting transactions on
digital advertising exchanges, including by offering software
or services that assist in serving or displaying digital
advertisements, for other buyers.
``(3) Digital advertisement.--The term `digital
advertisement' means an advertisement that is served
electronically over a computer network, including the internet.
``(4) Digital advertising exchange.--The term `digital
advertising exchange' means a person who constitutes,
maintains, or provides a marketplace for or facilitates
bringing together buyers and 1 or more third-party sellers of
digital advertisements, or for otherwise performing with
respect to digital advertising the functions commonly performed
by a digital advertising marketplace.
``(5) Digital advertising revenue.--The term `digital
advertising revenue' means the greater of--
``(A) global revenue derived from or directly
related to the operation of a digital advertising
exchange, a buy-side brokerage, or a sell-side
brokerage;
``(B) the sum of the clearing prices of all digital
advertisements bought or sold from or through a digital
advertising exchange;
``(C) the total value of the gross advertising
spending managed by a buy-side brokerage; or
``(D) the total value of the gross advertising
sales managed by a sell-side brokerage.
``(6) Divestiture deadline.--The term `divestiture
deadline' means the later of--
``(A) 30 days after the date on which the Attorney
General approves or denies a required divestiture; or
``(B) 30 days after the expiration of any
applicable waiting period specified in section 7A.
``(7) Effective date.--The term `effective date' means the
date that is 1 year after the date of enactment of this
section.
``(8) Own.--The term `own' means to own, operate, or
control, directly or indirectly, in whole or in part.
``(9) Person.--The term `person' includes--
``(A) any subsidiary of an entity; and
``(B) any corporate parent of an entity.
``(10) Required divestiture.--The term `required
divestiture'--
``(A) means a divestiture, sale, or other
transaction undertaken to comply with any provision of
this Act; and
``(B) does not include any action required by a
court of the United States.
``(11) Sell-side brokerage.--The term `sell-side brokerage'
means a person in the business of effecting transactions on
digital advertising exchanges, including by offering software
or services that assist in serving or displaying digital
advertisements, for third-party sellers.
``(12) Third-party.--The term `third-party' means, for each
person subject to this Act, an entity that--
``(A) neither owns nor is owned by the person; and
``(B) is not affiliated with the person through
direct or indirect ownership or control.
``(b) Prohibitions.--No person with more than $20,000,000,000 (as
adjusted each year on January 1 by an amount equal to the percentage
increase, if any, in the Consumer Price Index, as determined by the
Department of Labor or its successor) in digital advertising revenue
during the previous calendar year may, after the effective date--
``(1) own a digital advertising exchange if the person--
``(A) owns a sell-side brokerage or a buy-side
brokerage; or
``(B) is a seller of digital advertising space;
``(2) own a sell-side brokerage if the person owns a buy-
side brokerage; or
``(3) own a buy-side brokerage or a sell-side brokerage if
the person is a buyer or seller of digital advertising space.
``(c) Requirements.--On and after the effective date, any person
with more than $5,000,000,000 (as adjusted each year on January 1 by an
amount equal to the percentage increase, if any, in the Consumer Price
Index, as determined by the Department of Labor or its successor) in
digital advertising revenue during the previous calendar year shall be
subject to the following requirements:
``(1) Best interest duty.--A buy-side brokerage or sell-
side brokerage--
``(A) shall, in the course of providing services as
a brokerage, use reasonable diligence, care, and skill
to act in the best interests of the brokerage
customers; and
``(B) may not put the interests of the brokerage
ahead of those of the brokerage customers.
``(2) Best execution duty.--A buy-side brokerage or sell-
side brokerage shall seek the most favorable terms reasonably
available under the circumstances for each order transaction of
the brokerage customer.
``(3) Transparency requirements.--
``(A) In general.--Upon written request from a
brokerage customer, a buy-side brokerage or sell-side
brokerage shall supply to the brokerage customer,
within a reasonable time, information sufficient to
permit the brokerage customer to verify compliance of
the brokerage with the obligations under paragraphs (1)
and (2).
``(B) Contents.--The information described in
subparagraph (A) shall include, if requested and to the
extent such information is collected by the brokerage
in the ordinary course of business--
``(i) in the case of a sell-side brokerage
providing information to a sell-side brokerage
customer--
``(I) a unique and persistent
identifier that identifies each unique
digital advertising space for sale;
``(II) for each identifier
described in subclause (I), all bids
received, and, for each bid received,
the bid submitted to the digital
advertising exchange on behalf of the
buy-side brokerage customer, the
winning price, the uniform resource
locator or other property identifier at
the lowest level of granularity, the
identity of the digital advertising
exchange or other digital advertising
venue returning the bid, date, time
that the bid response was received in
microseconds or a lower level of
granularity, web domain associated with
the advertising creative, the
advertising creative size and format,
and whether the bid won the impression
of the seller;
``(III) the nature of any data
collected or derived from the brokerage
customer or any user or customer of the
brokerage customer, and the ways in
which the data is used by the sell-side
brokerage;
``(IV) the order or bid routing
practices or processes, including any
material exceptions to the standard
practice of the brokerage; and
``(V) the source and nature of any
compensation paid or received in
connection with transactions; and
``(ii) in the case of a buy-side brokerage
providing information to a buy-side brokerage
customer--
``(I) all bids won by the buy-side
brokerage customer, and for each bid
won, the maximum allowed bid of the
advertiser, if any, the uniform
resource locator or other property
identifier at the lowest level of
granularity, date, the digital
advertising exchange, the web domain
associated with the advertising
creative, the advertising creative size
and format, the winning price, the bid
submitted to the digital advertising
exchange on behalf of the buy-side
brokerage customer, and, if possible,
whether the ad served and whether the
ad rendered;
``(II) the order or bid routing
practices or processes; and
``(III) the source and nature of
any compensation paid or received in
connection with transactions.
``(C) Retention of records.--Brokerages shall
retain the applicable records specified in subparagraph
(B) collected in the ordinary course of business until
provided to a requesting brokerage customer but not
longer than 90 days. Brokerages shall retain billing
information for brokerage customers for not fewer than
12 months.
``(D) User privacy.--
``(i) In general.--When providing
information to a brokerage customer in response
to a request authorized by subparagraph (A),
the brokerage shall, to the greatest extent
possible consistent with the purpose of
subparagraph (A), anonymize, hash, or otherwise
render the information incapable of being tied
to an individual web user.
``(ii) Prohibiting tracking.--A brokerage
customer may not use data or information
received in response to a request made under
subparagraph (A) for any purpose other than--
``(I) verifying compliance of a
brokerage with the obligations under
paragraphs (1) and (2); or
``(II) bringing an action under
subsection (d)(3).
``(4) Firewalls.--
``(A) Buy-side and sell-side brokerages.--Buy-side
brokerages and sell-side brokerages shall establish,
maintain, and enforce written policies and procedures
reasonably designed to ensure compliance with the
obligations under this subsection.
``(B) Other persons.--Persons not subject to
prohibitions under subsection (b) shall establish,
maintain, and enforce written policies and procedures
reasonably designed to ensure that the buy-side
brokerage, sell-side brokerage, digital advertising
exchange, and role as a buyer or seller of digital
advertising, as applicable, operate separate and
independent from one another and transact business at
arm's length.
``(5) Fair access duty.--A digital advertising exchange
shall provide every buyer and seller in the exchange fair
access, including with respect to operations of the exchange,
colocation, any technology systems or data, information related
to transactions, service, or products offered, exchange
processes, and functionality.
``(6) Time synchronization.--A digital advertising
exchange, buy-side brokerage, or sell-side brokerage shall--
``(A) synchronize its business clocks at a minimum
to within a 2 milliseconds tolerance of the time
maintained by the atomic clock of the National
Institute of Standards and Technology; and
``(B) maintain the synchronization described in
subparagraph (A).
``(7) Data ownership.--All records pertaining to an order
solicited or submitted by a brokerage customer, and the
subsequent result of the order, shall remain the property of
the customer, including any bids solicited from or submitted to
any digital advertising exchange, unless the information is
otherwise publicly available.
``(8) Routing practices disclosure.--
``(A) In general.--Every sell-side brokerage and
buy-side brokerage shall--
``(i) make publicly available for each
calendar quarter a report on the order routing
practices of the sell-side brokerage or buy-
side brokerage, as applicable, for digital
advertisements during the quarter broken down
by calendar month; and
``(ii) retain the report described in
clause (i) posted on an internet website that
is free and readily accessible to the public
for the 3-year period beginning on the date on
which the report is posted.
``(B) Format.--Reports made available pursuant to
subparagraph (A) shall--
``(i) be rendered in a format that makes
the reports readily informative to the average
brokerage customer; and
``(ii) include for the 10 venues to which
the largest number of total bid requests or bid
responses were routed for execution and for any
venue to which 5 percent or more of bid
requests or bid responses were routed for
execution--
``(I) the total number of bids
routed;
``(II) the total number of bids
executed;
``(III) the fill rate of bids;
``(IV) the average net execution
fee or rebate per 1,000 impressions;
``(V) the average time in
milliseconds between when a bid request
is sent and when a bid response is
received; and
``(VI) the value and form of any
compensation given in exchange for
routing or execution.
``(9) Certification.--A digital advertising exchange, buy-
side brokerage, or sell-side brokerage shall certify to the
Attorney General on an annual basis that the digital
advertising exchange has complied with the requirements under
this subsection.
``(d) Enforcement.--
``(1) Attorney general and state attorneys general.--
``(A) Definition.--In this paragraph, the term
`Fund' means the Antitrust Consumer Damages Fund
established under subparagraph (D).
``(B) Civil action.--The Attorney General and State
attorneys general may bring an action on behalf of
persons in the United States injured in their business
or property by reason of any violation of this section
in any district court of the United States in the
district in which the defendant resides or is found or
has an agent, without respect to the amount in
controversy, and shall--
``(i) in a case brought by the Attorney
General or a State attorney general, be
entitled to injunctive relief; and
``(ii) in a case brought by the Attorney
General, recover damages sustained by such
persons.
``(C) Damages.--
``(i) In general.--The court may award
under this subsection, pursuant to a motion by
the Attorney General promptly made, simple
interest on actual damages in accordance with
subparagraph (B).
``(ii) No duplicative award.--A court may
not award any damages under this subparagraph
that are duplicative of damages awarded before
the date of the award under this subparagraph
in a separate civil action pertaining to the
same conduct and injured party.
``(iii) Payments.--A court awarding damages
to a person in a civil action after the date of
an award of damages under this subsection that
would be duplicative of damages awarded to the
Attorney General on behalf of the person shall
direct that such damages shall first be paid by
the Attorney General from amounts in the Fund
and, to the extent such damages are not fully
paid from amounts in the Fund, shall be paid by
the defendant.
``(D) Antitrust consumer damages fund.--
``(i) In general.--There is established in
the Treasury of the United States a fund to be
known as the `Antitrust Consumer Damages Fund',
which shall consist of amounts deposited under
clause (ii).
``(ii) Deposits and availability.--
Notwithstanding section 3302 of title 31,
United States Code, any amounts received by the
Attorney General under an award under this
subsection--
``(I) shall be deposited in the
Fund; and
``(II) shall be available to the
Attorney General, without further
appropriation, for distribution to
persons in the United States harmed by
the applicable violation of the Sherman
Act (15 U.S.C. 1 et seq.).
``(iii) Deposits into general fund.--
Effective on the day after the date that is 10
years after the date on which an award is
received under this paragraph, the unobligated
balances in the Fund of amounts that were
received under the award are rescinded and
shall be deposited in the general fund of the
Treasury.
``(2) Divestiture enforcement.--The Attorney General may
bring an action on behalf of the United States in any district
court of the United States in the district in which the
defendant resides or is found or has an agent, and may obtain
injunctive relief upon showing by a preponderance of the
evidence that the defendant has--
``(A) violated a requirement of subsection (e); or
``(B) undertaken a required divestiture that
unnecessarily harms or threatens competition in any
market.
``(3) Private right of action.--
``(A) In general.--A brokerage customer harmed by a
knowing violation of subsection (c) by a person with
more than $20,000,000,000 (as adjusted each year on
January 1 by an amount equal to the percentage
increase, if any, in the Consumer Price Index, as
determined by the Department of Labor or its successor)
in digital advertising revenue during the previous
calendar year may bring a civil action in an
appropriate court to obtain injunctive relief, if
appropriate, and recover damages in the amount of the
greater of--
``(i) $1,000,000 for each month in which
the violation occurred and reasonable
attorney's fees; or
``(ii) actual damages and reasonable
attorney's fees.
``(B) No class action waiver.--No person covered by
this section may require a class action waiver for
claims under this section, including for arbitration.
``(C) Timing.--A civil action for a violation of
subsection (b) may be brought at any time after the
later of--
``(i) the expiration of any applicable
divestiture deadline; or
``(ii) the expiration of the deadline
described in subsection (e)(1) if no filing has
been made.
``(e) Divestiture.--
``(1) Filing.--Any agreement or other document setting out
the terms of a required divestiture shall be filed with the
Attorney General not later than the later of--
``(A) the effective date; or
``(B) the earlier of--
``(i) 30 days after the date on which an
agreement making a required divestiture under
this Act is executed; or
``(ii) 180 days after meeting the criteria
specified in any paragraph of subsection (b).
``(2) Attorney general review.--The Attorney General shall
approve a required divestiture upon a showing by the person
making the divestiture that the terms of the divestiture,
including the qualifications of any counterparty to the
divestiture, will not unnecessarily harm or threaten
competition in any market.
``(3) Timing.--
``(A) In general.--The Attorney General shall grant
or deny approval of a required divestiture, unless
agreed to by the parties, not later than the later of--
``(i) 60 days after receipt of all
information obtained pursuant to subparagraph
(5); or
``(ii) 60 days after receipt of the filing
made under subparagraph (1).
``(B) Completion.--A divestiture shall be completed
not later than the divestiture deadline.
``(4) Guidance.--The Attorney General shall--
``(A) not later than 120 days after the date of
enactment of this section, issue guidance on the
divestiture process under this subsection and the
certification requirement under subsection (c)(9); and
``(B) update the guidance described in subparagraph
(A) as the Attorney General determines is appropriate.
``(5) Compulsory process.--The Attorney General may request
or issue a civil investigative demand under section 3 of the
Antitrust Civil Process Act (15 U.S.C. 1312) for documents from
any person involved in a required divestiture to determine the
competitive effects of the divestiture.
``(f) Rules of Construction.--Nothing in this section shall--
``(1) prohibit a person from--
``(A) selling their own inventory of advertising
space if--
``(i) the inventory was not acquired solely
for the purposes of resale, except to monetize
the content or intellectual property of the
person; and
``(ii) the person does not also assist a
third party in the sale or purchase of
advertising space, other than purchasing
advertising space from the person; or
``(B) buying inventory to market the products or
services of the person;
``(2) abridge or supersede any provision of, or rules
issued pursuant to, section 7A;
``(3) prohibit a person from, consistent with the antitrust
laws, entering into a joint venture or other collaboration to
prevent harm from spam, fraud, or other forms of abuse in
digital advertising; or
``(4) require the disclosure of information if the
disclosure would violate a law of the United States or a
foreign country.''.
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