HR5313-119

2. Protecting a competitive app market A covered company that owns or controls the operating system on which an app store owned or controlled by the covered company operates shall allow and provide readily accessible means for a user of such operating system to— choose a third-party app or app store as a default; install a third-party app or app store through means other than the app store owned or controlled by the covered company; and hide or delete an app or app store provided or pre-installed by the covered company (or any business partner of the covered company). A covered company, in a timely manner, without cost, and on terms that are equivalent to the terms of access by the covered company or any business partner of the covered company, shall provide to a developer of an app accessible on an operating system, or distributed through an app store, owned or controlled by the covered company— access to any interface and hardware and software feature of the operating system that are generally available to the covered company and any business partner of the covered company; and documentation and development information sufficient to access any such interface and feature. A covered company shall be in compliance with the requirements described under paragraph (2) if that company— licenses any intellectual property that the developer of an app needs to access any interface or hardware or software feature of such operating system; or limits the interfaces and hardware and software features of the operating system generally available to the covered company and any businesses partner of the company to interfaces and hardware and software features that do not implicate such intellectual property rights. A covered company may not— require, as a condition for an app to be accessible on an operating system or distributed through an app store that is owned or controlled by the covered company, that— a developer of the app use or enable an in-app payment system owned or controlled by the covered company or any business partner of the covered company; or pricing or other terms of sale be equal to or more favorable on such operating system or app store than on another operating system or app store; or take punitive action or otherwise impose less favorable terms and conditions against a developer of an app distributed outside of an app store that is owned or controlled by the covered company— for using or offering different pricing or other terms of sale on an app store or through an in-app payment system that is not owned or controlled by the covered company; or on the basis that such app provides access to a third-party app that is not owned or controlled by the covered company through remote electronic services rather than through download from an operating system or an app store that is owned or controlled by the covered company. A covered company may not impose any restriction or fee on the communication of a developer of an app accessible on an operating system or distributed through an app store that is owned or controlled by the covered company with a user of the app, whether through such app or direct outreach to such user, concerning legitimate business offers, including pricing or other terms of sale and product or service offerings. Nothing in this paragraph may be construed to prohibit a covered company from requiring that consent of a user be obtained prior to collecting and sharing data of the user through an app accessible on an operating system or distributed through an app store that is owned or controlled by the covered company if the apps and services of the company are subject to the same consent. A covered company may not use nonpublic business information derived from an app accessible on an operating system or distributed through an app store that is owned or controlled by the covered company for the purpose of competing with such app.

3. Enforcement A violation of this Act shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices. Except as provided in paragraph (3)— the Commission 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.) were incorporated into and made a part of this Act; and any covered company who violates this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. In addition to any penalty applicable under the Federal Trade Commission Act, any covered company who violates this Act shall be liable for a civil penalty of not more than $1,000,000 for each violation. Any civil penalty described in subparagraph (A) shall be obtained in the same manner as a civil penalty for a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). Nothing in this section may be construed to limit the authority of the Commission under any other provision of law. If the attorney general of a State, or an official or agency of a State, has reason to believe that an interest of the residents of the State has been or is threatened or adversely affected by an act or practice that violates this Act, the State may bring a civil action on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief. Except as provided in clause (iii), an attorney general, official, or agency of a State, before filing a civil action under paragraph (1), shall provide written notification to the Commission that the attorney general, official, or agency intends to bring such civil action. The notification required under clause (i) shall include a copy of the complaint for the civil action. If it is not feasible for an attorney general, official, or agency of a State to provide the notification required under clause (i) before filing a civil action under paragraph (1), the attorney general, official, or agency shall provide the notification to the Commission immediately upon the filing of the civil action. The Commission may— intervene in any civil action filed by an attorney general, official, or agency of a State under paragraph (1); and upon so intervening— be heard on all matters arising in the civil action; and appeal a decision in the civil action. If the Commission or the Attorney General of the United States has instituted a civil action for violation of this Act (referred to in this subparagraph as the Federal action), no State attorney general, official, or agency may bring an action under paragraph (1) during the pendency of the Federal action against any defendant named in the complaint in the Federal action for any violation of such Act alleged in such complaint. For purposes of bringing a civil action under paragraph (1), nothing in this Act may be construed to prevent an attorney general, official, or agency of a State from exercising the powers conferred on the attorney general, official, or agency by the laws of the State to conduct investigations, administer oaths or affirmations, or compel the attendance of witnesses or the production of documentary or other evidence.

4. Effect on State law A State, or political subdivision of a State, may not maintain, enforce, prescribe, or continue in effect any law, rule, regulation, requirement, standard, or other provision having the force and effect of law of the State, or political subdivision of the State, that— prohibits a covered company from engaging in any conduct prohibited by section 2; or requires a covered company to take any action required by section 2. This section may not be construed to— preempt any law of a State or political subdivision of a State relating to contracts, torts, or unfair competition; or preempt any law of a State or political subdivision of a State to the extent that such law relates to an act of fraud, unauthorized access to personal information, or notification of unauthorized access to personal information.

5. Rules of construction Nothing in this Act may be construed— to limit— any authority of the Federal Trade Commission under the Federal Trade Commission Act (15 U.S.C. 41 et seq.), or any other provision of law; or the application of any Federal law; to require a covered company— to provide service under a hardware or software warranty for damage caused by a third-party app or app store installed through means other than an app store owned or controlled by the covered company; or to provide customer service for the installation or operation of such a third-party app or app store; to prevent an action taken by a covered company that is reasonably tailored to protect the rights of a person under section 106, 1101, 1201, or 1401 of title 17, United States Code, or rights actionable under sections 32 or 43 of the Act entitled An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946 (commonly known as the Lanham Act or the Trademark Act of 1946) (15 U.S.C. 1114, 1125), or corollary State law; to require a covered company to license any intellectual property, including any trade secrets, owned by or licensed to the covered company; to prevent a covered company from asserting rights of the covered company under intellectual property law to prevent the unlawful use of any intellectual property owned by or duly licensed to the covered company; to require a covered company to work with or share data with any person who— is on any list maintained by the Federal Government by which entities are identified as limited or prohibited from engaging in economic transactions as part of United States sanctions or export control regimes; is a foreign entity that has been identified by the Federal Government as a national security, intelligence, or law enforcement risk, including the Government of the People’s Republic of China or the government of a foreign adversary (as defined in section 8(c)(2) of the Secure and Trusted Communications Networks Act of 2019 (473 U.S.C. 1607(c)(2))); or is a foreign adversary controlled application (as defined in section 2(g)(3) of the Protecting Americans from Foreign Adversary Controlled Applications Act (Public Law 118–50; 15 U.S.C. 9901 note)); or to limit any Federal or State law relating to antitrust.

6. Definitions In this Act: The term app means a software application or electronic service that may be run or directed by a user on a computer, a mobile device, or any other general purpose consumer computing device. The term app store means a publicly available website, software application, or other electronic service that may distribute apps from third-party developers to users of a computer, a mobile device, or any other general purpose consumer computing device. The term Commission means the Federal Trade Commission. The term covered company means any person who owns or controls— an app store for which the number of users in the United States exceeds 100,000,000; and the operating system on which such app store operates. The term developer means a person who owns or controls an app or an app store. The term in-app payment system means an application, service, or user interface to manage billing or process a payment from a user of an app. The term nonpublic business information means nonpublic data that is— derived from a developer or an app or app store owned or controlled by a developer, including an interaction between a user and the app or app store of the developer; and collected by a covered company in the course of operating an app store or providing an operating system. The term operating system includes an operating system configuration.

7. Guidance; effective date Not later than 180 days after the date of the enactment of this Act, the Commission shall issue guidance to assist covered companies in complying with this Act. This Act shall take effect on the date on which the Commission issues guidance under subsection (a).