Source: United States Department of Justice Criminal Division
Thank you for having me. It’s such a pleasure to be here at this incredibly important moment in antitrust and technology policy. We are at an inflection point in both. In antitrust enforcement, for the first time in decades we are beginning to implement monopolization remedies. That’s really where the rubber meets the road in these historic cases, and under Attorney General Bondi’s leadership, we are thinking deeply about how to do that thoughtfully under the law.
It’s a time for carefully opening up economic opportunity, not vindictively doling out punishment. Remedies should open markets to little tech at the same time that they incentivize our big tech firms to innovate rather than exclude.
Meanwhile in technology policy, we are living through yet another moment of leapfrog competition and technological evolution. In many respects, the dawn of the Large Language Model (LLM) is like the dawn of the internal combustion engine. AI provides a new way to power work that previously demanded individual effort, changing the basic rules of the game for what’s possible. We don’t know what this new day will hold, and that’s the fun of it all. In the same ways that Henry Ford and the Wright Brothers found ingenious ways to use engines, people will surely find ingenious ways to use LLMs that will change our world for the better.
If they have the opportunity, that is. Entrepreneurs and innovators will reshape our world for the better if they have that freedom, but if they are blocked by exclusionary practices and regulations, we won’t ever know what could have been.
Countries around the world are racing to harness this moment and lead the next century. We are in a global technological race on so many issues. AI, energy, healthcare, agriculture, and the list goes on. President Trump has acted boldly to ensure the American people win this race by removing barriers to innovation and investment. In other words, the President is freeing the markets to do what they do best.
I’d like to talk today about the intersection of those inflection points, namely antitrust remedies and the future of AI innovation. How can monopolization remedies support the innovation and dynamism that will unleash America’s golden age?
History answers this for us. History teaches us that effective monopolization remedies can help America win any global technological race the American way: through free market competition that empowers the American people to build their own destiny. The free market enables disruptive rivalry among little tech, big tech, and everything in between. The beautiful unpredictability of the competitive process has been the secret to American success for a century.
As a new American, I deeply believe in this quintessentially American economic approach. When I first learned about this country, I was taught that the American way of managing the economy is pretty simple — we don’t. America empowers its people by freeing them of governmental and monopolistic control. I talked about this at my Senate confirmation hearing earlier this year, about how many Americans share a concern about both Tyranny.gov and Tyranny.com, as the kids like to say.
America has competitors, like China, that think they can win this race with centralized control and the promotion of national champion monopolists. Their foreign ideology trusts managers more than markets. They will soon learn the lesson that Russia learned in the Cold War. The American way works because free markets allocate talent and resources far better than central planners.
The antitrust laws, of course, are the free market laws. As the Supreme Court reiterated in NC Dental, “Federal antitrust law is a central safeguard for the Nation’s free market structures” that ensures “the preservation of economic freedom and our free-enterprise system.”[1] The antitrust laws stem from a recognition that rules excluding competitors from our markets are just as harmful to free enterprise whether imposed by a government or a monopolist. This is because central planning is just as ineffectual whether it takes place in a party headquarters or a corporate campus.
Over a century of Sherman Act enforcement proves that monopolization remedies can break the grip of a private monopolist over an industry and unleash innovation that benefits our country for decades to come.
That premise goes all the way back to the earliest monopolization cases. When storied Trustbuster Teddy Roosevelt sued to break up Standard Oil, he rejected arguments that the government would discourage industry by stepping in to protect the free market. “On the contrary,” he said,” the proper play for individual initiative can only be secured by such governmental supervision as will curb those monopolies which crush out all individual initiative.”[2] With these words, President Roosevelt began a long tradition of Republican Presidents, including Presidents Eisenhower and Reagan, whose DOJ Antitrust Divisions stood for individual initiative and the free market.
In the antitrust case that followed, the Supreme Court recognized the many harms that flowed from monopolist John Rockefeller’s centralized control over oil, including higher prices, limited economic opportunity, and stifled innovation.[3]
Today, we talk about how data is the new oil. Back then, oil was the new oil. The internal combustion engine was a marvelous invention, but its cost of operation has always depended on the price of oil. If Roosevelt had not sued to break up Standard Oil, Ford would have sold fewer Model T’s because they cost more to drive. Airlines would have grown more slowly because they cost more to operate. If Rockefeller had maintained his monopoly, the return on investment of every product or service that used oil would have been higher. The costs to the United States’ economic dynamism in the 20th century would have been incalculable.
A similar thread runs through the success of Silicon Valley. It’s a storied, but often overlooked, history. This history shows us that monopolization remedies in Antitrust Division cases seeded Silicon Valley and, at critical junctures, have contributed to its growth up through today. The cycle of little tech firms growing big and leading America’s technological success has been continually enabled and reinforced by thoughtful antitrust enforcement.
With the remainder of my time this afternoon, I would like to run through three important examples of what this thoughtful enforcement looked like and talk about what the cases may mean for effective monopolization remedies in the tech industry today.
My first example relates to the 1949 Antitrust Division lawsuit against AT&T regarding the company’s abuse of its telephone monopoly to foreclose competition in related industries. The settlement ended AT&T’s role as a central planner controlling innovation and entrepreneurship in technology markets adjacent to its telephone monopoly.
The Division originally sought remedies that included divestiture of AT&T’s manufacturing subsidiary Western Electric, splitting Western Electric into separate companies, and requiring AT&T to competitively bid all purchases. In 1956, however, the Division and AT&T agreed to a settlement. The consent decree entered by the court did not include structural relief, but it formalized other remedies voluntarily offered by AT&T, including requiring AT&T to provide information about Western Electric’s costs, restricting AT&T from supplying equipment to its local operating companies and its operating licensee companies, and a patent licensing remedy.
Among other important technologies, the settlement encouraged and enabled third party use of nascent transistor innovations.
In the aftermath of the settlement, Shockley Semiconductor, Fairchild, Texas Instruments, and Intel quickly grew.[4] They developed a long series of new ideas and products, not least including silicon chips. The number of transistors produced to benefit humanity grew exponentially following intel-founder Gordon Moore’s predictive law — the idea that the number of transistors on a chip would double every two years.
Moore’s law proved remarkably prescient: To this day, the transistor underlies the integrated circuit and in turn nearly every major technological advance of the digital age. The data centers powering the AI revolution are giant warehouses of transistors. In fact, humans have now replicated the transistor more than nails or fire or any other invention in world history.
Gordon Moore believed the AT&T antitrust decree animated that success. Looking back in 1999, he explained that the 1950s antitrust suit was one of the most important developments in the history of the commercial semiconductor industry. The settlement, he said, enabled the merchant semiconductor industry “to really get started” and had a direct connection to the founding of the formative firms that birthed Silicon Valley.[5]
We can draw two lessons from this for monopolization remedies. First, antitrust enforcement can be a catalyst for competitive growth and disruption. This has important implications. We need to ensure monopolists do not hoard all the oxygen, which may mean restructuring companies as well as behavioral remedies that restructure access to data, users, and platforms.
Second, we need to trust in the competitive process. Eisenhower’s Antitrust Division didn’t pick winners and losers, and it didn’t try to forecast how innovators would build on the inventions it unlocked. They simply freed markets and left the competitive process open to generate growth the American way.
My second example involves the AT&T antitrust litigation of a generation later and may rival the 1956 decree for its importance to our economic history. Following years of litigation, Ronald Reagan’s antitrust AAG Bill Baxter broke up the AT&T telephone monopoly through a consent decree that required AT&T to divest control of its local telephone providers into regional operating companies.
Despite the 1956 decree, AT&T continued to dominate the telecommunications system. Before the breakup, it controlled more than 85% of local telephone services, 85% of long-distance services, and 82% of the market for telephone equipment.[6] These local operating companies themselves purchased over 90% of their telecommunications equipment from Western Electric, AT&T’s manufacturing subsidiary, leaving little opportunity for competing equipment manufacturers.[7]
AT&T’s central control of telephone equipment had profoundly negative impacts for inventors. I love the story of the first wireless phone, the Carterfone, because its inventor was such a character. A rancher, Thomas Carter wanted to be able to take phone calls while out on his ranch. He invented a device that essentially combined walkie-talkie technology with his wired telephone. But when he introduced the Carterfone in 1959, AT&T fought tooth and nail to prevent him from connecting the device to the monopoly telephone system. It took decades of litigation, including private antitrust litigation by Carter and regulatory action from the FCC, to force them to allow it into the market.[8]
Carter was the kind of character who would pick that fight. But think about how many other inventors never tried because the barriers to entry imposed by AT&T were so high.
The Reagan DOJ break-up changed all of this. As competition entered the long-distance telephone market, prices fell drastically.[9] And with the local monopolies split into regional bells, innovation in adjacent markets was unleashed. The wireless industry grew up from this reality of diverse equipment options and multiple nationwide competitors.[10] Wireless smartphones, and the applications they have enabled, have powered America’s economic leadership in the 21st century.
There are two lessons here for us. First, the threat unchecked monopolization poses to competition and innovation in adjacent markets. I think about how different Steve Jobs’ experience was from Thomas Carter’s. When Jobs came up with a transformative new idea for telephone equipment, he was able to market the iPhone without any obstacles. Why? Because the competition among wireless companies that descended from the Bell Breakup ensured open market access for innovative communication equipment entrants.
Second, the story brings to life the benefits to our national security and global competitiveness of careful, robust monopolization remedies. It almost seems funny now, but AT&T based its opposition to the breakup in large part on the idea that it was a national champion. It claimed that enforcing the antitrust laws against our national telephone monopolist would cost us the Cold War. I think you know how the Cold War turned out.
As long as there are powerful monopolists, there will be fearmongering. But we should reject the suggestion that the only path to our economic security is to turn a critical market over to a monopolistic corporation. National champions are too often national chokepoints. The path to our national security and global technology leadership depends on competitive markets that allow for the growth of new cutting-edge U.S. technologies.
My third example is the Bush Administration’s consent decree with Microsoft in the early 2000s. As you know, the settlement followed a 1998 lawsuit by the Division and 19 states, who obtained a series of behavioral remedies after winning a liability trial. That decree helped stimulate competition in digital markets over the last two decades and helped Google, Apple, Facebook, and so many other tech companies that built their success on top of the Windows ecosystem.
The Microsoft case directly addressed the threat Microsoft’s Windows monopoly posed to innovation on the platform. Throughout the 1990s, Microsoft had used its Windows monopoly to dictate to users and manufacturers what applications could be installed on their computers, how those applications could run, and even where they could be located. In 2002, after the D.C. Circuit affirmed the district court’s finding that Microsoft had illegally monopolized the computer operating system market, the district court entered the Microsoft Decree.
The settlement required Microsoft to disclose APIs to third-party developers so that Microsoft could not block developers from creating “middleware” programs that ran on the Windows operating system. And it prevented Microsoft from favoring its own products to cut off distribution and customer access for innovators in adjacent markets. Basically, the Microsoft Decree cut off the company’s ability to centrally plan everything that happened in and around Windows PCs.
In doing so, the Microsoft Decree injected critical oxygen into the Silicon Valley ecosystem.[11] Google was able to grow independently without the threat of Microsoft favoring its own search engine and browser.
Apple, for its part, was able to grow iTunes rapidly on PCs. That aspect of the remedy served as the middleware for a serious operating system threat because iTunes became the launch platform for the iPod, iPad, and iPhone, and in turn for the growth of today’s successful iOS ecosystem.
Beyond Google and Apple, dozens of other companies invested, innovated, grew, and competed in the spaces the Microsoft decree created for economic opportunity, from Facebook to Oracle.[12]
The lesson of the Microsoft decree is the importance of monopolization remedies in protecting leapfrog competition. At the time of the Microsoft case, there was a great public debate as to the utility of antitrust enforcement in high-tech industries characterized by transformative innovations. The D.C. Circuit acknowledged this debate, referencing scholars all the way back to Schumpeter for the idea that the most important form of competition can be “for the field” rather than “within the field.”[13]
But the Microsoft experience teaches us that monopolization remedies do not merely protect static competition within the field. Constraining a monopolist’s exclusionary conduct also protects competition for the field by preventing it from choking off nascent threats in their infancy. An unconstrained Microsoft might have prevented iTunes from supporting iOS devices. It could have choked off a young Google before it could grow large enough to develop its own complementary Android operating system. But the decree protected the free market and allowed those innovators to thrive.
That’s an incredibly important lesson. When we break a monopolist’s exclusionary central control of a market, we create opportunities and incentives to invest in the leapfrog innovation that powers America’s long-term economic success.
I’ll finish where I started. A century of monopolization remedies demonstrates how we will win the global technological and economic race. We will win it the American way, with free market competition backstopped by careful, robust antitrust enforcement. This benefits everyone.
And I mean everyone.
You’ve heard today about the benefits to innovators of monopolization enforcement under prior Republican administrations. Our auto, electricity, and airline industries benefited from lower oil prices because we broke up the Standard Oil monopoly. Our semiconductor industry grew up nurtured by the 1956 AT&T settlement, and our wireless industry grew up out of the 1983 breakup. Apple, Google, Facebook, and so many others benefitted from the Microsoft remedy that freed up competition on Windows systems.
But I should also underscore how well the monopolist defendants did too. Studies show that Standard Oil’s shareholders gained massively from the growth of the divested companies, now still operating and undergirding the Dow Jones as ExxonMobil and Chevron.[14] AT&T’s shareholders benefited as well, enjoying the massive growth of Verizon and AT&T after the breakup.[15] And I doubt anyone who bought Microsoft stock in the early 2000s regrets it today.
That’s the American way. We empower great companies to do what they do best — to compete through innovation and win opportunities in the free market — and the pie grows for everyone.
And that’s how we’ll win the races to come.
Thank you.
[1] N. Carolina State Bd. Of Dental Examiners v. F.T.C., 574 U.S. 494, 502 (2015) (internal citations omitted).
[2] Theodore Roosevelt, President of the U.S., Special Message to the Senate and House of Representatives (May 4, 1906), https://www.presidency.ucsb.edu/documents/special-message-393.
[3] Standard Oil Co. v. United States, 221 U.S. 1, 33 (1911).
[4] Martin Watzinger et al., How Antitrust Enforcement Can Spur Innovation: Bell Labs and the 1956 Consent Decree, 12 Am. Econ. J.: Econ. Pol’y 328, 332, 357 (2020); Daniel Holbrook et al., The Nature, Sources, and Consequences of Firm Differences in the Early History of the Semiconductor Industry, 21 Strategic Mgmt. J. 1017, 1023 (2000); see also Giovanna Massarotto, From Standard Oil to Google: How the Role of Antitrust Law Has Changed, 41 World Competition L. & Econ. Rev. 395, 401 (2018).
[5] Capitalizing on New Needs and New Opportunities: Government-Industry Partnerships in Biotechnology and Information Technologies 86 (Charles W. Wessner ed., 2001); Watzinger et al., supra note 4, at 332.
[6] Martin Watzinger & Monika Schnitzer, The Breakup of the Bell System and its Impact on US Innovation 1 (Ctr. For Econ. Pol’y Rsch., Discussion Paper No. 17635, 2022).
[7] Steven G. Olley & Ariel Pakes, The Dynamics of Productivity in the Telecommunications Equipment Industry, 64 Econometrica 1263, 1267 (1996).
[8] See In re Use of the Carterfone Device in Message Toll Tel. Serv., 13 F.C.C.2d 420, 424 (1968); see also Hush-A-Phone Corp. v. FCC, 238 F.2d 266, 269 (D.C. Cir. 1956); Everett M. Ehrlich et al., The Impact of Regulation on Innovation and Choice in Wireless Communications, 9 Rev. Network Econ. 2, 23-24 (2010) (explaining how these decisions spurred innovation in the telecommunications equipment market).
[9] See Jonathan B. Baker, The Case for Antitrust Enforcement, 17 J. Econ. Perspectives 27, 34 (2003).
[10] See Ehrlich et al., supra note 8, at 24; Peter C. Carstensen, Remedies for Monopolization from Standard Oil to Microsoft and Intel: The Changing Nature of Monopoly Law from Elimination of Market Power to Regulation of its Use, 85 S. Cal. L. Rev. 815, 829 (2012); Massarotto, supra note 5, at 401. Bell Labs, for its part, continued to innovate for many years after the breakup. Watzinger & Schnitzer, supra note 6, at 16-17, 21, 31-32.
[11] Carstensen, supra note 11, at 838.
[12] See David A. Heiner, “Microsoft: A Remedial Success?, 78 Antitrust L.J. 329, 340 (2012); Renata B. Hesse, Section 2 Remedies and U.S. v. Microsoft: What Is to Be Learned?, 75 Antitrust L.J. 847, 865 (2009).
[13] United States v. Microsoft, 253 F.3d 34, 49 (2001) (citing Joseph A. Schumpeter, Capitalism, Socialism and Democracy 81–90 (Harper Perennial 1976) (1942); Michael L. Katz & Carl Shapiro, Network Externalities, Competition, and Compatibility, 75 Am. Econ. Rev. 424, 424 (1985).
[14] William S. Comanor, Break ‘Em Up for Their Own Good: Compare the good fortunes of Standard Oil and AT&T after their breakups to the slides of IBM and GM, L.A. Times, Dec. 30, 1992.