H.R. 5017 (117^th): Open App Markets Act

require developers to use an In-App Payment System owned or controlled by the Covered Company or any of its business partners as a condition of being distributed on an App Store or accessible on an operating system;

require as a term of distribution on an App Store that pricing terms or conditions of sale be equal to or more favorable on its App Store than the terms or conditions under another App Store; or

take punitive action or otherwise impose less favorable terms and conditions against a developer for using or offering different pricing terms or conditions of sale through another In-App Payment System or on another App Store.

choose third-party Apps or App Stores as defaults for categories appropriate to the App or App Store;

install third-party Apps or App Stores through means other than its App Store; and

hide or delete Apps or App Stores provided or preinstalled by the App Store owner or any of its business partners.

In general

A Covered Company shall not provide unequal treatment of Apps in an App Store through unreasonably preferencing or ranking the Apps of the Covered Company or any of its business partners over those of other Apps.

Considerations

Unreasonably pref­er­enc­ing—

necessary to achieve user privacy, security, or digital safety;

taken to prevent spam or fraud; or

taken to prevent a violation of, or comply with, Federal or State law.

applied on a demonstrably consistent basis to Apps of the Covered Company or its business partners and to other Apps;

not used as a pretext to exclude, or impose unnecessary or discriminatory terms on, third-party Apps, In-App Payment Systems, or App Stores; and

narrowly tailored and could not be achieved through a less discriminatory and technically possible means.

In general

The Federal Trade Commission, the Attorney General, and any attorney general of a State subject to the requirements in paragraph (4) shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) or the Clayton Act (15 U.S.C. 12 et seq.), as appropriate, were incorporated into and made a part of this Act.

Unfair methods of competition

A violation of this Act shall also constitute an unfair method of competition under section 5 of the Federal Trade Commission Act (15 U.S.C. 5).

Federal trade commission independent litigation authority

If the Federal Trade Commission has reason to believe that a Covered Company violated this Act, the Federal Trade Commission may commence a civil action, in its own name by any of its attorneys designated by it for such purpose, to recover a civil penalty and seek other appropriate relief in a district court of the United States against the covered platform operator.

Parens patriae

Any attorney general of a State may bring a civil action in the name of such State for a violation of this Act as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, and may secure any form of relief provided for in this section.

In general

Any developer who shall be injured by reason of anything forbidden in this Act may sue therefor 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 recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. The court may award under this subsection, pursuant to a motion by such developer promptly made, simple interest on actual damages for the period beginning on the date of service of such developer’s pleading setting forth a claim under this Act and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the circumstances. In determining whether an award of interest under this subsection for any period is just in the circumstances, the court shall consider only—

Injunctive relief

Any developer shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of this Act, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. In any action under this paragraph in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney’s fee, to such plaintiff.