It hardly seems appropriate for Congress to spend its time going after companies that are trying to make football more widely accessible and enjoyable.
The American Innovation and Choice Online Act could prevent innovative deals, such as streaming NFL football.
T he NFL is back in full swing, to the delight of football fans across the nation. There have already been a number of instant classics just a few weeks into the season. One of the most exciting games was the week 2 matchup between the Kansas City Chiefs and the Los Angeles Chargers. Beyond being a competitive game between great offenses, the game was the first under the NFL’s deal with Amazon to exclusively broadcast Thursday night games on Amazon Prime.
A federal antitrust bill targeting Big Tech companies such as Amazon would threaten this new arrangement. The American Innovation and Choice Online (AICO) Act, introduced by Senator Amy Klobuchar (D., Minn.), would make it presumptively illegal for a company to favor its own products and services on its platforms. And, given that Amazon’s Thursday Night Football streams are made available at no extra cost, it is very possible this could invoke the ire of the Federal Trade Commission.
First, neither the text of the bill nor its proponents have made a compelling case for why a company preferring its own products is something that needs to be tackled by law. Countless businesses, from tech to groceries, promote their own products in their own marketplaces, and it’s almost tautological that they would do so.
Even if Amazon were able to convince an FTC tribunal that their agreement with the NFL was not anticompetitive, there are other drawbacks should the AICO be passed. The bill includes a private right of action, meaning private citizens and companies are also welcome to bring lawsuits, in addition to the FTC. This is an open invitation to litigious competitors in the legacy media to try to bury new entrants in lawsuits. While Amazon might win the battle, they could incur millions of dollars in legal costs to fight to keep their stream afloat. And other smaller companies without the resources of Amazon would likely not even try to compete.
Amazon’s competitors in this space are legacy outlets such as CBS, Fox, NBC, and ESPN, who might otherwise have the broadcast rights to these games. Not that long ago, the notion that a streaming service could adequately broadcast NFL games on a regular basis, with production quality that rivals traditional outlets, would have been unthinkable.
Contrary to what supporters of the bill might say, deals like these actually represent a breakthrough for competition against entrenched players. Further back in time, it might have been outlandish to suggest that an upstart network such as ESPN could compete with the big networks in sports broadcasting. Yet the network is now essentially synonymous with sports itself.
The deal with Amazon may just be the beginning. There are rumors that Apple TV+ (which just signed an exclusive broadcast deal with Major League Soccer) may be the new successor to AT&T-owned DirecTV for rights to the NFL Sunday Ticket package, which allows fans to watch out-of-market games from anywhere in the country. Tech companies are looking to expand their horizons and bring better products to fans everywhere.
Rather than being evidence of why antitrust is needed, these deals are actually evidence of the contrary. Amazon and Apple are new entrants to this market, upsetting the traditionally entrenched powers and offering something new. While pearl-clutching over “monopolies” might be popular on Capitol Hill, markets are constantly shifting, and dominant companies do not remain so for very long. Pointing to current dominance is missing the entire picture.
Klobuchar’s anti-tech antitrust push would stifle competition, not encourage it. The streaming revolution that is coming to the NFL, posing a threat to major networks, is yet another piece of evidence of that truth. With so much else going on with the economy, it hardly seems appropriate for Congress to spend its time going after companies that are, among other things, trying to make football more widely accessible and enjoyable.