,i #aagth ,,congress #b;d ,session ,h4 ,r4 #ghci ,,in ,,the ,,house ,,of ,,representatives ,may #ai1 #bjbb,mr4 ,buck 7for himself1 ,ms4 ,jayapal1 ,mr4 ,owens1 and ,mr4 ,cicilline7 introduced the following bill2 which was referred to the ,committee on the ,judiciary ,a ,,bill ,to prevent conflicts of interest and promote competition in the sale and purchase of digital advertising4 #a4 ,short title ,this ,act may be cited as the ,competition and ,transparency in ,digital ,advertising ,act4 #b4 ,digital advertising trading transparency and competition ,the ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq47 is amended by inserting after section #h 7#ae ,u4,s4,c4 #ai7 the following3 #h;,a4 ,competition and transparency in digital advertising 7a7 ,definitions ,in this section3 7#a7 ,brokerage customer ,the term brokerage customer means a person who has purchased or sold digital advertisements1 or directly related goods or services1 through a buy-side brokerage or a sell-side brokerage4 7#b7 ,buy-side brokerage ,the term buy-side brokerage means a person in the business of effecting transactions on digital advertising exchanges1 including by offering software or services that assist in serving or displaying digital advertisements1 for other buyers4 7#c7 ,digital advertisement ,the term digital advertisement means an advertisement that is served electronically over a computer network1 including the internet4 7#d7 ,digital advertising exchange ,the term digital advertising exchange means a person who constitutes1 maintains1 or provides a marketplace for or facilitates bringing together buyers and #a or more sellers of digital advertisements1 or for otherwise performing with respect to digital advertising the functions commonly performed by a digital advertising marketplace4 7#e7 ,digital advertising revenue ,the term digital advertising revenue means the greater of-- 7,a7 global revenue derived from or directly related to the operation of a digital advertising exchange1 a buy-side brokerage1 or a sell-side brokerage2 or 7,b7 the greater of-- 7i7 the sum of the clearing prices of all digital advertisements bought or sold from or through a digital advertising exchange2 7ii7 the total value of the gross advertising spending managed by a buy-side brokerage2 or 7iii7 the total value of the gross advertising sales managed by a sell-side brokerage4 7#f7 ,divestiture deadline ,the term divestiture deadline means the later of-- 7,a7 #cj days after the date on which the ,attorney ,general approves or denies a required divestiture2 or 7,b7 #cj days after the expiration of any applicable waiting period under section #g;,a4 7#g7 ,effective date ,the term effective date means the date that is #a year after the date of enactment of this section4 7#h7 ,own ,the term own means to own1 operate1 or control1 directly or indirectly1 in whole or in part4 7#i7 ,person ,the term person includes-- 7,a7 any subsidiary of an entity2 and 7,b7 any corporate parent of an entity4 7#aj7 ,required divestiture ,the term required divestiture-- 7,a7 means a divestiture1 sale1 or other transaction undertaken to comply with any provision of this ,act2 and 7,b7 does not include any action required by a court of the ,united ,states4 7#aa7 ,sell-side brokerage ,the term sell-side brokerage means a person in the business of effecting transactions on digital advertising exchanges1 including by offering software or services that assist in serving or displaying digital advertisements1 for other sellers4 7#ab7 ,third-party ,the term third-party means1 for each person subject to this ,act1 an entity that-- 7,a7 neither owns nor is owned by that person2 and 7,b7 is not affiliated with the person through direct or indirect ownership or control4 7b7 ,prohibitions ,no person with more than #bj1jjj1jjj1jjj 7as adjusted each year on ,january #a by an amount equal to the percentage increase1 if any1 in the ,consumer ,price ,index1 as determined by the ,department of ,labor or its successor7 in digital advertising revenue during the previous calendar year may1 after the effective date-- 7#a7 own a digital advertising exchange if that person owns either a sell-side brokerage or a buy-side brokerage1 or is a seller of digital advertising space2 7#b7 own a sell-side brokerage if that person owns a buy-side brokerage2 or 7#c7 own a buy-side brokerage or a sell-side brokerage if that person is also a buyer or seller of digital advertising space4 7c7 ,requirements ,any person with more than #e1jjj1jjj1jjj 7as adjusted each year on ,january #a by an amount equal to the percentage increase1 if any1 in the ,consumer ,price ,index1 as determined by the ,department of ,labor or its successor7 in digital advertising revenue during the previous calendar year shall be subject to1 as of the effective date1 the following requirements3 7#a7 ,best interest duty ,a buy-side brokerage or sell-side brokerage shall1 in the course of providing services as a brokerage1 use reasonable diligence1 care1 and skill to act in the best interests of their brokerage customers1 and may not put their own interests ahead of those of their brokerage customers4 7#b7 ,best execution duty ,a buy-side brokerage or sell-side brokerage shall seek the most favorable terms reasonably available under the circumstances for each order transaction of the brokerage customer4 7#c7 ,transparency requirements 7,a7 ,in general ,upon written request from a brokerage customer1 a buy-side brokerage or sell-side brokerage shall supply to that brokerage customer1 within a reasonable time1 information sufficient to permit the brokerage customer to verify compliance of the brokerage with its obligations under paragraphs 7#a7 and 7#b74 7,b7 ,contents ,the information described in subparagraph 7,a7 shall include1 if requested and to the extent such information is collected by the brokerage in the ordinary course of business-- 7i7 in the case of a sell-side brokerage providing information to a sell-side brokerage customer-- 7,i7 a unique and persistent identifier that identifies each unique digital advertising space for sale2 7,,ii7 for each identifier described in subclause 7,i71 all bids received1 and1 for each bid received1 the bid submitted to the digital advertising exchange on behalf of the buy-side brokerage customer1 the winning price1 the uniform resource locator or other property identifier at the lowest level of granularity1 the identity of the digital advertising exchange or other digital advertising venue returning the bid1 date1 time that the bid response was received in microseconds or a lower level of granularity1 web domain associated with the advertising creative1 the advertising creative size and format1 and whether the bid won the seller's impression2 7,,iii7 the nature of any data collected or derived from the brokerage customer or any user or customer of the brokerage customer1 and the ways in which that data is used by the sell-side brokerage2 7,,iv7 the order or bid routing practices or processes1 including any material exceptions to the standard practice of the brokerage2 and 7,v7 the source and nature of any compensation paid or received in connection with transactions2 and 7ii7 in the case of a buy-side brokerage providing information to a buy-side brokerage customer-- 7,i7 all bids won by the buy-side brokerage customer1 and for each bid won1 the maximum allowed bid of the advertiser1 if any1 the uniform resource locator or other property identifier at the lowest level of granularity1 date1 the digital advertising exchange1 the web domain associated with the advertising creative1 the advertising creative size and format1 the winning price1 the bid submitted to the digital advertising exchange on behalf of the buy-side brokerage customer1 and1 if possible1 whether the ad served and whether the ad rendered2 7,,ii7 the order or bid routing practices or processes2 and 7,,iii7 the source and nature of any compensation paid or received in connection with transactions4 7,c7 ,retention of records ,brokerages shall retain the records specified in subparagraph 7,b71 where applicable and when collected in the ordinary course of business1 until provided to a requesting brokerage customer but not longer than #ij days4 ,brokerages shall retain billing information for their brokerage customers for not fewer than #ab months4 7,d7 ,user privacy 7i7 ,in general ,when providing information to a brokerage customer in response to a request authorized by subparagraph 7,a71 the brokerage shall1 to the greatest extent possible consistent with the purpose of subparagraph 7,a71 anonymize1 hash1 or otherwise render the information incapable of being tied to an individual web user4 7ii7 ,prohibiting tracking ,a brokerage customer may not use data or information received in response to a request made under subparagraph 7,a7 for any purpose other than-- 7,i7 verifying compliance of a brokerage with its obligations under paragraphs 7#a7 and 7#b72 or 7,,ii7 bringing an action under subsection 7d77#c74 7#d7 ,firewalls 7,a7 ,buy-side and sell-side brokerages ,buy-side brokerages and sell-side brokerages shall establish1 maintain1 and enforce written policies and procedures reasonably designed to ensure compliance with the obligations under this subsection4 7,b7 ,other persons ,persons not subject to prohibitions under subsection 7b7 shall establish1 maintain1 and enforce written policies and procedures reasonably designed to ensure that their buy-side brokerage1 sell-side brokerage1 digital advertising exchange1 and role as a buyer or seller of digital advertising1 where applicable1 operate separate and independent from one another and transact business at arm's length4 7#e7 ,fair access duty ,a digital advertising exchange shall provide every buyer and seller in the exchange fair access1 including with respect to operations of the exchange1 co-location1 any technology systems or data1 information related to transactions1 service1 or products offered1 exchange processes1 and functionality4 7#f7 ,time synchronization ,a digital advertising exchange1 buy-side brokerage1 or sell-side brokerage shall-- 7,a7 synchronize its business clocks at a minimum to within a #b milliseconds tolerance of the time maintained by the atomic clock of the ,national ,institute of ,standards and ,technology2 and 7,b7 maintain the synchronization described in subparagraph 7,a74 7#g7 ,data ownership ,all records pertaining to an order solicited or submitted by a brokerage customer1 and the subsequent result of that order1 shall remain the property of that customer1 including any bids solicited from or submitted to any digital advertising exchange1 unless the information is otherwise publicly available4 7#h7 ,routing practices disclosure 7,a7 ,in general ,every sell-side brokerage and buy-side brokerage shall-- 7i7 make publicly available for each calendar quarter a report on the order routing practices of the sell-side brokerage or buy-side brokerage1 as applicable1 for digital advertisements during that quarter broken down by calendar month2 and 7ii7 retain the report described in clause 7i7 posted on an internet website that is free and readily accessible to the public for #c-year period beginning on the date on which the report is posted4 7,b7 ,format ,reports made available pursuant to subparagraph 7,a7 shall-- 7i7 be rendered in a format that makes the reports readily informative to the average brokerage customer2 and 7ii7 include for the #aj venues to which the largest number of total bid requests or bid responses were routed for execution and for any venue to which #e percent or more of bid requests or bid responses were routed for execution-- 7,i7 the total number of bids routed2 7,,ii7 the total number of bids executed2 7,,iii7 the fill rate of bids2 7,,iv7 the average net execution fee or rebate per #a1jjj impressions2 7,v7 the average time in milliseconds between when a bid request is sent and when a bid response is received2 and 7,,vi7 the value and form of any compensation given in exchange for routing or execution4 7#i7 ,certification ,a digital advertising exchange1 buy-side brokerage1 or sell-side brokerage shall certify to the ,attorney ,general on an annual basis that the digital advertising exchange has complied with the requirements under this subsection4 7d7 ,enforcement 7#a7 ,attorney general and state attorneys general 7,a7 ,in general ,the ,attorney ,general and ,state attorneys general may bring an action on behalf of persons in the ,united ,states injured in their business or property by reason of any violation of this ,act in any district court of the ,united ,states in the district in which the defendant resides or is found or has an agent1 without respect to the amount in controversy1 and shall-- 7i7 in a case brought by the ,attorney ,general or a ,state attorney general1 be entitled to injunctive relief2 and 7ii7 in a case brought by the ,attorney ,general1 recover damages sustained by such persons4 7,b7 ,damages 7i7 ,in general ,the court may award under this subsection1 pursuant to a motion by the ,attorney ,general promptly made1 simple interest on actual damages in accordance with the requirements under subparagraph 7,a74 7ii7 ,no duplicative award ,a court may not award any damages under this subparagraph that are duplicative of damages awarded before the date of the award under this subparagraph in a separate civil action pertaining to the same conduct and injured party4 7iii7 ,payments ,a court awarding damages to a person in a civil action after the date of an award of damages under this subsection that would be duplicative of damages awarded to the ,attorney ,general on behalf of the person shall direct that such damages shall first be paid by the ,attorney ,general from amounts in the ,fund and1 to the extent such damages are not fully paid from amounts in the ,fund1 shall be paid by the defendant4 7,c7 ,antitrust consumer damages fund 7i7 ,in general ,there is established in the ,treasury of the ,united ,states a fund to be known as the ,antitrust ,consumer ,damages ,fund 7in this subsection referred to as the ,fund71 which shall consist of amounts deposited under clause 7ii74 7ii7 ,deposits and availability ,notwithstanding section #ccjb of title #ca1 ,united ,states ,code1 any amounts received by the ,attorney ,general under an award under this subsection-- 7,i7 shall be deposited in the ,fund2 and 7,,ii7 shall be available to the ,attorney ,general1 without further appropriation1 for distribution to persons in the ,united ,states harmed by the applicable violation of the ,sherman ,act 7#ae ,u4,s4,c4 #a et seq474 7iii7 ,deposits into general fund ,effective on the day after the date that is #aj years after the date on which an award is received under this paragraph1 the unobligated balances in the ,fund of amounts that were received under the award are rescinded and shall be deposited in the general fund of the ,treasury4 7#b7 ,divestiture enforcement ,the ,attorney ,general may bring an action on behalf of the ,united ,states in any district court of the ,united ,states in the district in which the defendant resides or is found or has an agent1 and may obtain injunctive relief upon showing by a preponderance of the evidence that the defendant has-- 7,a7 violated a requirement of subsection 7e72 or 7,b7 undertaken a required divestiture that unnecessarily harms or threatens competition in any market4 7#c7 ,private right of action 7,a7 ,in general ,a brokerage customer harmed by a knowing violation of subsection 7c7 by a person with more than #bj1jjj1jjj1jjj 7as adjusted each year on ,january #a by an amount equal to the percentage increase1 if any1 in the ,consumer ,price ,index1 as determined by the ,department of ,labor or its successor7 in digital advertising revenue during the previous calendar year may bring a civil action in an appropriate court to obtain injunctive relief1 where appropriate1 and recover damages in the amount of the greater of-- 7i7 #a1jjj1jjj for each month in which a violation of this ,act occurred and reasonable attorney's fees2 or 7ii7 actual damages and reasonable attorney's fees4 7,b7 ,no class action waiver ,no person covered by this ,act may require a class action waiver for claims under this ,act1 including for arbitration4 7,c7 ,timing ,a civil action for a violation of subsection 7b7 may be brought at any time after the later of-- 7i7 the expiration of any applicable divestiture deadline2 or 7ii7 the expiration of the deadline in subsection 7e77#a7 if no filing has been made4 7e7 ,divestiture 7#a7 ,filing ,any agreement or other document setting out the terms of a required divestiture shall be filed with the ,attorney ,general not later than the later of-- 7,a7 the effective date2 or 7,b7 the earlier of-- 7i7 #cj days after the date on which an agreement making a required divestiture under this ,act is executed2 or 7ii7 #ahj days after meeting the criteria specified in any paragraph of subsection 7b74 7#b7 ,attorney general review ,the ,attorney ,general shall approve a required divestiture upon a showing by the person making the divestiture that the terms of the divestiture1 including the qualifications of any counter parties thereto1 will not unnecessarily harm or threaten competition in any market4 7#c7 ,timing 7,a7 ,in general ,the ,attorney ,general shall grant or deny approval of a required divestiture1 unless agreed to by the parties1 no later than the later of-- 7i7 #fj days after receipt of all information obtained pursuant to subparagraph 7#e72 or 7ii7 #fj days after receipt of the filing made under subparagraph 7#a74 7,b7 ,completion ,a divestiture shall be completed not later than the divestiture deadline4 7#d7 ,guidance ,the ,attorney ,general shall-- 7,a7 not later than #abj days after the date of enactment of this section1 issue guidance on the divestiture process under this subsection and the certification requirement under subsection 7c77#f72 and 7,b7 update the guidance described in subparagraph 7,a7 as the ,attorney ,general determines is appropriate4 7#e7 ,compulsory process ,the ,attorney ,general may request or issue a civil investigative demand under section #c of the ,antitrust ,civil ,process ,act 7#ae ,u4,s4,c4 #acab7 for documents from any person involved in a required divestiture to determine the competitive effects of the divestiture4 7f7 ,rules of construction ,nothing in this section shall-- 7#a7 prohibit a person from-- 7,a7 selling their own inventory of advertising space if-- 7i7 the inventory was not acquired solely for the purposes of resale1 except to monetize the person's own content or intellectual property2 and 7ii7 the person does not also assist a third-party in the sale or purchase of advertising space1 other than purchasing advertising space from that person2 or 7,b7 buying inventory to market the products or services of the person2 7#b7 abridge or supersede any provision of or rules issued pursuant to section #g;,a2 7#c7 prohibit a person from1 consistent with the antitrust laws1 entering into a joint venture or other collaboration to prevent harm from spam1 fraud1 or other forms of abuse in digital advertising2 or 7#d7 require the disclosure of information if such disclosure would violate a law of the ,united ,states or a foreign country4 4