Paper by Amy L. Stein: “The threat of monopoly power looms large today. Although not the telecommunications and tobacco monopolies of old, the Goliaths of Big Tech have become today’s target for potential antitrust violations. It is not only their control over the social media infrastructure and digital advertising technologies that gives people pause, but their monopolistic collection, use, and sale of customer data. But large technology companies are not the only private companies that have exclusive access to your data; that can crowd out competitors; and that can hold, use, or sell your data with little to no regulation. These other private companies are not data companies, platforms, or even brokers. They are public utilities.
Although termed “public utilities,” these entities are overwhelmingly private, shareholder-owned entities. Like private Big Tech, utilities gather incredible amounts of data from customers and use this data in various ways. And like private Big Tech, these utilities can exercise exclusionary and self-dealing anticompetitive behavior with respect to customer data. But there is one critical difference— unlike Big Tech, utilities enjoy an implied immunity from antitrust laws. This state action immunity has historically applied to utility provision of essential services like electricity and heat. As utilities find themselves in the position of unsuspecting data stewards, however, there is a real and unexplored question about whether their long- enjoyed antitrust immunity should extend to their data practices.
As the first exploration of this question, this Article tests the continuing application and rationale of the state action immunity doctrine to the evolving services that a utility provides as the grid becomes digitized. It demonstrates the importance of staunching the creep of state action immunity over utility data practices. And it recognizes the challenges of developing remedies for such data practices that do not disrupt the state-sanctioned monopoly powers of utilities over the provision of essential services. This Article analyzes both antitrust and regulatory remedies, including a new customer- focused “data duty,” as possible mechanisms to enhance consumer (ratepayer) welfare in this space. Exposing utility data practices to potential antitrust liability may be just the lever that is needed to motivate states, public utility commissions, and utilities to develop a more robust marketplace for energy data…(More)”.