,,ii #aagth ,,congress #ast ,session ,s4 #bgaj ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,august #aa 7legislative day1 ,august #aj71 #bjba,mr4 ,blumenthal 7for himself1 ,mrs4 ,blackburn1 and ,ms4 ,klobuchar7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to promote competition and reduce gatekeeper power in the app economy1 increase choice1 improve quality1 and reduce costs for consumers4 #a4 ,short title ,this ,act may be cited as the ,open ,app ,markets ,act4 #b4 ,definitions ,in this ,act3 7#a7 ,app ,the term ,app means a software application or electronic service that may be run or directed by a user on a computer1 a mobile device1 or any other general purpose computing device4 7#b7 ,app store ,the term ,app ,store means a publicly available website1 software application1 or other electronic service that distributes ,apps from third-party developers to users of a computer1 a mobile device1 or any other general purpose computing device4 7#c7 ,covered company ,the term ,covered ,company means any person that owns or controls an ,app ,store for which users in the ,united ,states exceed #ej1jjj1jjj4 7#d7 ,developer ,the term developer means a person that owns or controls an ,app or an ,app ,store4 7#e7 ,in-app payment system ,the term ,in-,app ,payment ,system means an application1 service1 or user interface to process the payments from users of an ,app4 7#f7 ,non-public business information ,the term non-public business information means non-public data that is-- 7,a7 derived from a developer or an ,app or ,app ,store owned or controlled by a developer1 including interactions between users and the ,app or ,app ,store of the developer2 and 7,b7 collected by a ,covered ,company in the course of operating an ,app ,store or providing an operating system4 #c4 ,protecting a competitive app market 7a7 ,exclusivity and tying ,a ,covered ,company shall not-- 7#a7 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 system2 7#b7 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 ,store2 or 7#c7 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 ,store4 7b7 ,interference with legitimate business communications ,a ,covered ,company shall not impose restrictions on communications of developers with the users of the ,app through an ,app or direct outreach to a user concerning legitimate business offers1 such as pricing terms and product or service offerings4 7c7 ,non-,public business information ,a ,covered ,company shall not use non-public business information derived from a third-party ,app for the purpose of competing with that ,app4 7d7 ,interoperability ,a ,covered ,company that controls the operating system or operating system configuration on which its ,app ,store operates shall allow and provide the readily accessible means for users of that operating system to-- 7#a7 choose third-party ,apps or ,app ,stores as defaults for categories appropriate to the ,app or ,app ,store2 7#b7 install third-party ,apps or ,app ,stores through means other than its ,app ,store2 and 7#c7 hide or delete ,apps or ,app ,stores provided or preinstalled by the ,app ,store owner or any of its business partners4 7e7 ,self-,preferencing in search 7#a7 ,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 ,apps4 7#b7 ,considerations ,unreasonably preferencing-- 7,a7 includes applying ranking schemes or algorithms that prioritize ,apps based on a criterion of ownership interest by the ,covered ,company or its business partners2 and 7,b7 does not include clearly disclosed advertising4 7f7 ,open app development ,access to operating system interfaces1 development information1 and hardware and software features shall be provided to developers on a timely basis and on terms that are equivalent or functionally-equivalent to the terms for access by similar ,apps or functions provided by the ,covered ,company or to its business partners4 #d4 ,protecting the security and privacy of users 7a7 ,in general ,subject to section 7b71 a ,covered ,company shall not be in violation of a subsection of section #c for an action that is-- 7#a7 necessary to achieve user privacy1 security1 or digital safety2 7#b7 taken to prevent spam or fraud2 or 7#c7 taken to prevent a violation of1 or comply with1 ,federal or ,state law4 7b7 ,requirements ,section 7a7 shall only apply if the ,covered ,company establishes by clear and convincing evidence that the action described is-- 7#a7 applied on a demonstrably consistent basis to ,apps of the ,covered ,company or its business partners and to other ,apps2 7#b7 not used as a pretext to exclude1 or impose unnecessary or discriminatory terms on1 third-party ,apps1 ,in-,app ,payment ,systems1 or ,app ,stores2 and 7#c7 narrowly tailored and could not be achieved through a less discriminatory and technically possible means4 #e4 ,enforcement 7a7 ,enforcement 7#a7 ,in general ,the ,federal ,trade ,commission1 the ,attorney ,general1 and any attorney general of a ,state subject to the requirements in paragraph 7#d7 shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 or the ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq471 as appropriate1 were incorporated into and made a part of this ,act4 7#b7 ,unfair methods of competition ,a violation of this ,act shall also constitute an unfair method of competition under section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #e74 7#c7 ,federal trade commission independent litigation authority ,if the ,federal ,trade ,commission has reason to believe that a ,covered ,company violated this ,act1 the ,federal ,trade ,commission may commence a civil action1 in its own name by any of its attorneys designated by it for such purpose1 to recover a civil penalty and seek other appropriate relief in a district court of the ,united ,states against the covered platform operator4 7#d7 ,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 ,state1 in any district court of the ,united ,states having jurisdiction of the defendant1 and may secure any form of relief provided for in this section4 7b7 ,suits by developers injured 7#a7 ,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 agent1 without respect to the amount in controversy1 and shall recover threefold the damages by him sustained1 and the cost of suit1 including a reasonable attorney's fee4 ,the court may award under this subsection1 pursuant to a motion by such developer promptly made1 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 judgment1 or for any shorter period therein1 if the court finds that the award of such interest for such period is just in the circumstances4 ,in determining whether an award of interest under this subsection for any period is just in the circumstances1 the court shall consider only-- 7,a7 whether such developer or the opposing party1 or either party's representative1 made motions or asserted claims or defenses so lacking in merit as to show that such party or representative acted intentionally for delay1 or otherwise acted in bad faith2 7,b7 whether1 in the course of the action involved1 such developer or the opposing party1 or either party's representative1 violated any applicable rule1 statute1 or court order providing for sanctions for dilatory behavior or otherwise providing for expeditious proceedings2 and 7,c7 whether such developer or the opposing party1 or either party's representative1 engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof4 7#b7 ,injunctive relief ,any developer shall be entitled to sue for and have injunctive relief1 in any court of the ,united ,states having jurisdiction over the parties1 against threatened loss or damage by a violation of this ,act1 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 equity1 under the rules governing such proceedings1 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 immediate1 a preliminary injunction may issue4 ,in any action under this paragraph in which the plaintiff substantially prevails1 the court shall award the cost of suit1 including a reasonable attorney's fee1 to such plaintiff4 #f4 ,rule of construction ,nothing in this ,act shall be construed to limit any authority of the ,attorney ,general or the ,federal ,trade ,commission under the antitrust laws 7as defined in the first section of the ,clayton ,act 7#ae ,u4,s4,c4 #ab771 the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq471 or any other provision of law or to limit the application of any law4 #g4 ,severability ,if any provision of this ,act1 or the application of such a provision to any person or circumstance1 is held to be unconstitutional1 the remaining provisions of this ,act1 and the application of the provision held to be unconstitutional to any other person or circumstance1 shall not be affected thereby4