II 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Advertising Middlemen 4 Endangering Rigorous Internet Competition Account- 5 ability Act’’ or the ‘‘AMERICA Act’’. 6 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1073 IS SEC. 2. DIGITAL ADVERTISING TRADING TRANSPARENCY 1 AND COMPETITION. 2 The Clayton Act (15 U.S.C. 12 et seq.) is amended 3 by inserting after section 8 (15 U.S.C. 19) the following: 4 ‘‘SEC. 8A. COMPETITION AND TRANSPARENCY IN DIGITAL 5 ADVERTISING. 6 ‘‘(a) DEFINITIONS.—In this section: 7 ‘‘(1) BROKERAGE CUSTOMER.—The term ‘bro- 8 kerage customer’ means a person who has purchased 9 or sold digital advertisements, or directly related 10 goods or services, through a buy-side brokerage or a 11 sell-side brokerage. 12 ‘‘(2) BUY-SIDE BROKERAGE.—The term ‘buy- 13 side brokerage’ means a person in the business of ef- 14 fecting transactions on digital advertising exchanges, 15 including by offering software or services that assist 16 in serving or displaying digital advertisements, for 17 other buyers. 18 ‘‘(3) DIGITAL ADVERTISEMENT.—The term 19 ‘digital advertisement’ means an advertisement that 20 is served electronically over a computer network, in- 21 cluding the internet. 22 ‘‘(4) DIGITAL ADVERTISING EXCHANGE.—The 23 term ‘digital advertising exchange’ means a person 24 who constitutes, maintains, or provides a market- 25 place for or facilitates bringing together buyers and 26 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1073 IS 1 or more third-party sellers of digital advertise- 1 ments, or for otherwise performing with respect to 2 digital advertising the functions commonly per- 3 formed by a digital advertising marketplace. 4 ‘‘(5) DIGITAL ADVERTISING REVENUE.—The 5 term ‘digital advertising revenue’ means the greater 6 of— 7 ‘‘(A) global revenue derived from or di- 8 rectly related to the operation of a digital ad- 9 vertising exchange, a buy-side brokerage, or a 10 sell-side brokerage; 11 ‘‘(B) the sum of the clearing prices of all 12 digital advertisements bought or sold from or 13 through a digital advertising exchange; 14 ‘‘(C) the total value of the gross adver- 15 tising spending managed by a buy-side broker- 16 age; or 17 ‘‘(D) the total value of the gross adver- 18 tising sales managed by a sell-side brokerage. 19 ‘‘(6) DIVESTITURE DEADLINE.—The term ‘di- 20 vestiture deadline’ means the later of— 21 ‘‘(A) 30 days after the date on which the 22 Attorney General approves or denies a required 23 divestiture; or 24 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1073 IS ‘‘(B) 30 days after the expiration of any 1 applicable waiting period specified in section 2 7A. 3 ‘‘(7) EFFECTIVE DATE.—The term ‘effective 4 date’ means the date that is 1 year after the date 5 of enactment of this section. 6 ‘‘(8) OWN.—The term ‘own’ means to own, op- 7 erate, or control, directly or indirectly, in whole or 8 in part. 9 ‘‘(9) PERSON.—The term ‘person’ includes— 10 ‘‘(A) any subsidiary of an entity; and 11 ‘‘(B) any corporate parent of an entity. 12 ‘‘(10) REQUIRED DIVESTITURE.—The term ‘re- 13 quired divestiture’— 14 ‘‘(A) means a divestiture, sale, or other 15 transaction undertaken to comply with any pro- 16 vision of this Act; and 17 ‘‘(B) does not include any action required 18 by a court of the United States. 19 ‘‘(11) SELL-SIDE BROKERAGE.—The term ‘sell- 20 side brokerage’ means a person in the business of ef- 21 fecting transactions on digital advertising exchanges, 22 including by offering software or services that assist 23 in serving or displaying digital advertisements, for 24 third-party sellers. 25 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1073 IS ‘‘(12) THIRD-PARTY.—The term ‘third-party’ 1 means, for each person subject to this Act, an entity 2 that— 3 ‘‘(A) neither owns nor is owned by the per- 4 son; and 5 ‘‘(B) is not affiliated with the person 6 through direct or indirect ownership or control. 7 ‘‘(b) PROHIBITIONS.—No person with more than 8 $20,000,000,000 (as adjusted each year on January 1 by 9 an amount equal to the percentage increase, if any, in the 10 Consumer Price Index, as determined by the Department 11 of Labor or its successor) in digital advertising revenue 12 during the previous calendar year may, after the effective 13 date— 14 ‘‘(1) own a digital advertising exchange if the 15 person— 16 ‘‘(A) owns a sell-side brokerage or a buy- 17 side brokerage; or 18 ‘‘(B) is a seller of digital advertising space; 19 ‘‘(2) own a sell-side brokerage if the person 20 owns a buy-side brokerage; or 21 ‘‘(3) own a buy-side brokerage or a sell-side 22 brokerage if the person is a buyer or seller of digital 23 advertising space. 24 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1073 IS ‘‘(c) REQUIREMENTS.—On and after the effective 1 date, any person with more than $5,000,000,000 (as ad- 2 justed each year on January 1 by an amount equal to the 3 percentage increase, if any, in the Consumer Price Index, 4 as determined by the Department of Labor or its suc- 5 cessor) in digital advertising revenue during the previous 6 calendar year shall be subject to the following require- 7 ments: 8 ‘‘(1) BEST INTEREST DUTY.—A buy-side bro- 9 kerage or sell-side brokerage— 10 ‘‘(A) shall, in the course of providing serv- 11 ices as a brokerage, use reasonable diligence, 12 care, and skill to act in the best interests of the 13 brokerage customers; and 14 ‘‘(B) may not put the interests of the bro- 15 kerage ahead of those of the brokerage cus- 16 tomers. 17 ‘‘(2) BEST EXECUTION DUTY.—A buy-side bro- 18 kerage or sell-side brokerage shall seek the most fa- 19 vorable terms reasonably available under the cir- 20 cumstances for each order transaction of the broker- 21 age customer. 22 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 23 ‘‘(A) IN GENERAL.—Upon written request 24 from a brokerage customer, a buy-side broker- 25 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1073 IS age or sell-side brokerage shall supply to the 1 brokerage customer, within a reasonable time, 2 information sufficient to permit the brokerage 3 customer to verify compliance of the brokerage 4 with the obligations under paragraphs (1) and 5 (2). 6 ‘‘(B) CONTENTS.—The information de- 7 scribed in subparagraph (A) shall include, if re- 8 quested and to the extent such information is 9 collected by the brokerage in the ordinary 10 course of business— 11 ‘‘(i) in the case of a sell-side broker- 12 age providing information to a sell-side 13 brokerage customer— 14 ‘‘(I) a unique and persistent 15 identifier that identifies each unique 16 digital advertising space for sale; 17 ‘‘(II) for each identifier described 18 in subclause (I), all bids received, and, 19 for each bid received, the bid sub- 20 mitted to the digital advertising ex- 21 change on behalf of the buy-side bro- 22 kerage customer, the winning price, 23 the uniform resource locator or other 24 property identifier at the lowest level 25 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1073 IS of granularity, the identity of the dig- 1 ital advertising exchange or other dig- 2 ital advertising venue returning the 3 bid, date, time that the bid response 4 was received in microseconds or a 5 lower level of granularity, web domain 6 associated with the advertising cre- 7 ative, the advertising creative size and 8 format, and whether the bid won the 9 impression of the seller; 10 ‘‘(III) the nature of any data col- 11 lected or derived from the brokerage 12 customer or any user or customer of 13 the brokerage customer, and the ways 14 in which the data is used by the sell- 15 side brokerage; 16 ‘‘(IV) the order or bid routing 17 practices or processes, including any 18 material exceptions to the standard 19 practice of the brokerage; and 20 ‘‘(V) the source and nature of 21 any compensation paid or received in 22 connection with transactions; and 23 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1073 IS ‘‘(ii) in the case of a buy-side broker- 1 age providing information to a buy-side 2 brokerage customer— 3 ‘‘(I) all bids won by the buy-side 4 brokerage customer, and for each bid 5 won, the maximum allowed bid of the 6 advertiser, if any, the uniform re- 7 source locator or other property iden- 8 tifier at the lowest level of granu- 9 larity, date, the digital advertising ex- 10 change, the web domain associated 11 with the advertising creative, the ad- 12 vertising creative size and format, the 13 winning price, the bid submitted to 14 the digital advertising exchange on be- 15 half of the buy-side brokerage cus- 16 tomer, and, if possible, whether the ad 17 served and whether the ad rendered; 18 ‘‘(II) the order or bid routing 19 practices or processes; and 20 ‘‘(III) the source and nature of 21 any compensation paid or received in 22 connection with transactions. 23 ‘‘(C) RETENTION OF RECORDS.— 24 Brokerages shall retain the applicable records 25 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1073 IS specified in subparagraph (B) collected in the 1 ordinary course of business until provided to a 2 requesting brokerage customer but not longer 3 than 90 days. Brokerages shall retain billing in- 4 formation for brokerage customers for not 5 fewer than 12 months. 6 ‘‘(D) USER PRIVACY.— 7 ‘‘(i) IN GENERAL.—When providing 8 information to a brokerage customer in re- 9 sponse to a request authorized by subpara- 10 graph (A), the brokerage shall, to the 11 greatest extent possible consistent with the 12 purpose of subparagraph (A), anonymize, 13 hash, or otherwise render the information 14 incapable of being tied to an individual web 15 user. 16 ‘‘(ii) PROHIBITING TRACKING.—A 17 brokerage customer may not use data or 18 information received in response to a re- 19 quest made under subparagraph (A) for 20 any purpose other than— 21 ‘‘(I) verifying compliance of a 22 brokerage with the obligations under 23 paragraphs (1) and (2); or 24 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1073 IS ‘‘(II) bringing an action under 1 subsection (d)(3). 2 ‘‘(4) FIREWALLS.— 3 ‘‘(A) BUY-SIDE AND SELL-SIDE 4 BROKERAGES.—Buy-side brokerages and sell- 5 side brokerages shall establish, maintain, and 6 enforce written policies and procedures reason- 7 ably designed to ensure compliance with the ob- 8 ligations under this subsection. 9 ‘‘(B) OTHER PERSONS.—Persons not sub- 10 ject to prohibitions under subsection (b) shall 11 establish, maintain, and enforce written policies 12 and procedures reasonably designed to ensure 13 that the buy-side brokerage, sell-side brokerage, 14 digital advertising exchange, and role as a 15 buyer or seller of digital advertising, as applica- 16 ble, operate separate and independent from one 17 another and transact business at arm’s length. 18 ‘‘(5) FAIR ACCESS DUTY.—A digital advertising 19 exchange shall provide every buyer and seller in the 20 exchange fair access, including with respect to oper- 21 ations of the exchange, colocation, any technology 22 systems or data, information related to transactions, 23 service, or products offered, exchange processes, and 24 functionality. 25 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1073 IS ‘‘(6) TIME SYNCHRONIZATION.—A digital ad- 1 vertising exchange, buy-side brokerage, or sell-side 2 brokerage shall— 3 ‘‘(A) synchronize its business clocks at a 4 minimum to within a 2 milliseconds tolerance of 5 the time maintained by the atomic clock of the 6 National Institute of Standards and Tech- 7 nology; and 8 ‘‘(B) maintain the synchronization de- 9 scribed in subparagraph (A). 10 ‘‘(7) DATA OWNERSHIP.—All records pertaining 11 to an order solicited or submitted by a brokerage 12 customer, and the subsequent result of the order, 13 shall remain the property of the customer, including 14 any bids solicited from or submitted to any digital 15 advertising exchange, unless the information is oth- 16 erwise publicly available. 17 ‘‘(8) ROUTING PRACTICES DISCLOSURE.— 18 ‘‘(A) IN GENERAL.—Every sell-side broker- 19 age and buy-side brokerage shall— 20 ‘‘(i) make publicly available for each 21 calendar quarter a report on the order 22 routing practices of the sell-side brokerage 23 or buy-side brokerage, as applicable, for 24 VerDate Sep 11 2014 22:30 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1073.IS S1073 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1073 IS digital advertisements during the quarter 1 broken down by calendar month; and 2 ‘‘(ii) retain the report described in 3 clause (i) posted on an internet website 4 that is free and readily accessible to the 5 public for the 3-year period beginning on 6 the date on which the report is posted. 7 ‘‘(B) FORMAT.—Reports made available 8 pursuant to subparagraph (A) shall— 9 ‘‘(i) be rendered in a format that 10 makes the reports readily informative to 11 the average brokerage customer; and 12 ‘‘(ii) include for the 10 venues to [Text truncated for display. 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