By: Little H.B. No. 5480
A BILL TO BE ENTITLED
AN ACT
relating to competition and transparency in digital advertising.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 2, Business & Commerce Code, is amended by
adding Chapter 18 to read as follows:
CHAPTER 18. COMPETITION AND TRANSPARENCY IN DIGITAL ADVERTISING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 18.001. DEFINITIONS. In this chapter:
(1) "Brokerage customer" means a person who purchases
or sells digital advertisements, or directly related goods or
services, through a buy-side brokerage or a sell-side brokerage.
(2) "Buy-side brokerage" means a person in the
business of effecting transactions on digital advertising
exchanges, including by offering software or services that assist
in serving or displaying digital advertisements, for other buyers.
(3) "Digital advertisement" means an advertisement
that is served electronically over a computer network, including
the Internet.
(4) "Digital advertising exchange" means a person who
constitutes, maintains, or provides a marketplace for or
facilitates bringing together buyers and one or more sellers of
digital advertisements, or for otherwise performing with respect to
digital advertising the functions commonly performed by a digital
advertising marketplace.
(5) "Digital advertising revenue" means the greater
of:
(A) global revenue derived from or directly
related to the operation of a digital advertising exchange, a
buy-side brokerage, or a sell-side brokerage; or
(B) the largest of:
(i) the sum of the clearing prices of all
digital advertisements bought or sold from or through a digital
advertising exchange;
(ii) the total value of the gross
advertising spending managed by a buy-side brokerage; or
(iii) the total value of the gross
advertising sales managed by a sell-side brokerage.
(6) "Divestiture deadline" means the 30th day after
the date on which the attorney general approves or denies a required
divestiture.
(7) "Own" means ownership whether directly or
indirectly or wholly or partly. The term includes operation or
control, whether directly or indirectly or wholly or partly.
(8) "Person" includes:
(A) a subsidiary of an entity; and
(B) a corporate parent of an entity.
(9) "Required divestiture" means a divestiture, sale,
or other transaction undertaken to comply with this chapter. The
term does not include an action required by a state or federal
court.
(10) "Sell-side brokerage" means a person in the
business of effecting transactions on digital advertising
exchanges, including by offering software or services that assist
in serving or displaying digital advertisements, for other sellers.
(11) "Third party," for a person subject to this
chapter, means an entity that:
(A) does not own or is not owned by that person;
and
(B) is not affiliated with that person through
direct or indirect ownership or control.
Sec. 18.002. CONSTRUCTION OF CHAPTER. This chapter may not
be construed to:
(1) prohibit a person from:
(A) selling the person's own inventory of
advertising space if:
(i) the inventory was not acquired solely
for resale purposes, except to monetize the person's own content or
intellectual property; and
(ii) the person does not also assist a third
party in the sale or purchase of advertising space, other than
purchasing advertising space from that person; or
(B) buying inventory to market the products or
services of the person;
(2) prohibit a person from, consistent with antitrust
law, entering into a joint venture or other collaboration to
prevent harm from spam, fraud, or other forms of abuse in digital
advertising; or
(3) require the disclosure of information if the
disclosure would violate a law of this state, the United States, or
a foreign country.
SUBCHAPTER B. PROHIBITIONS AND REQUIREMENTS
Sec. 18.051. PROHIBITED PRACTICES. A person with more than
$20 billion in digital advertising revenue for the preceding
calendar year may not:
(1) own a digital advertising exchange if that person
owns either a buy-side brokerage or a sell-side brokerage or is a
seller of digital advertising space;
(2) own a sell-side brokerage if that person owns a
buy-side brokerage; or
(3) own a buy-side brokerage or a sell-side brokerage
if that person is also a buyer or seller of digital advertising
space.
Sec. 18.052. GENERAL REQUIREMENTS. A person that is a
buy-side brokerage or sell-side brokerage with more than $5 billion
in digital advertising revenue for the preceding calendar year
shall:
(1) in the course of providing services as a
brokerage, use reasonable diligence, care, and skill to act in the
best interest of the brokerage customer and may not put the
brokerage's own interest ahead of the interest of the brokerage
customer; and
(2) seek the most favorable terms reasonably available
under the circumstances for each order transaction of the brokerage
customer.
Sec. 18.053. DIGITAL ADVERTISING REVENUE ADJUSTMENT. (a)
In this section, "consumer price index" means the average over a
calendar year of the Consumer Price Index for All Urban Consumers
(CPI-U), U.S. City Average, published monthly by the United States
Bureau of Labor Statistics, or its successor in function.
(b) Beginning in 2027, on January 1 of each year, the
attorney general may adjust the digital advertising revenue amount
prescribed by Sections 18.051 and 18.052 by an amount equal to the
percentage increase, if any, in the consumer price index in digital
advertising revenue for the preceding calendar year.
(c) The attorney general shall make the determination
required by this section and may adopt rules related to making that
determination.
Sec. 18.054. TRANSPARENCY REQUIREMENTS. (a) On written
request from a brokerage customer, a buy-side brokerage or
sell-side brokerage shall provide to the customer, within a
reasonable time, information sufficient to permit the customer to
verify the brokerage's compliance with Section 18.052.
(b) The information disclosed under Subsection (a) must
include, if requested and to the extent the information is
collected by the brokerage in the ordinary course of business:
(1) if a sell-side brokerage is providing information
to a sell-side brokerage customer:
(A) a unique and persistent identifier that
identifies each unique digital advertising space for sale;
(B) for each identifier described by Paragraph
(A), all bids received and, for each bid received:
(i) the bid submitted to the digital
advertising exchange on behalf of the buy-side brokerage customer;
(ii) the winning price;
(iii) the uniform resource locator or other
property identifier at the lowest level of granularity;
(iv) the identity of the digital
advertising exchange or other digital advertising venue returning
the bid;
(v) the date and time that the bid response
was received in microseconds or a lower level of granularity;
(vi) the web domain associated with the
advertising creative;
(vii) the advertising creative size and
format; and
(viii) whether the bid won the seller's
impression;
(C) the nature of any data collected or derived
from the brokerage customer or any user or customer of the brokerage
customer and the ways in which that data is used by the sell-side
brokerage;
(D) the order or bid routing practices or
processes, including any material exceptions to the standard
practice of the brokerage; and
(E) the source and nature of any compensation
paid or received in connection with transactions; and
(2) if a buy-side brokerage is providing information
to a buy-side brokerage customer:
(A) all bids won by the buy-side brokerage
customer, and for each bid won:
(i) the maximum allowed bid, if any, of the
advertiser;
(ii) the uniform resource locator or other
property identifier at the lowest level of granularity;
(iii) the date;
(iv) the digital advertising exchange;
(v) the web domain associated with the
advertising creative;
(vi) the advertising creative size and
format;
(vii) the winning price;
(viii) the bid submitted to the digital
advertising exchange on behalf of the buy-side brokerage customer;
and
(ix) if possible, whether the advertisement
served and whether the advertisement rendered;
(B) the order or bid routing practices or
processes; and
(C) the source and nature of any compensation
paid or received in connection with transactions.
Sec. 18.055. RETENTION OF RECORDS. (a) A brokerage shall
retain the records specified in Section 18.054(b), as applicable,
if collected by the brokerage in the ordinary course of business,
until the later of:
(1) the 90th day after the date the data is collected;
or
(2) the date the brokerage provides the data to a
customer in response to a request submitted by that customer under
Section 18.054(a), if the request was submitted before the 90th day
after the date the data was collected.
(b) A brokerage shall retain billing information for a
brokerage customer until the first anniversary of the collection of
that information.
Sec. 18.056. USER PRIVACY. (a) When providing information
to a brokerage customer in response to a request authorized by
Section 18.054(a), the brokerage shall, to the greatest extent
possible consistent with the purpose of this chapter, anonymize,
hash, or otherwise render the information incapable of being tied
to an individual Internet user.
(b) A brokerage customer may not use data or information
received in response to a request made under Section 18.054(a) for
any purpose other than:
(1) verifying the brokerage's compliance with Section
18.052; or
(2) bringing an action under Section 18.105.
Sec. 18.057. POLICIES AND PROCEDURES FOR INTERNAL
COMPLIANCE. A buy-side brokerage and sell-side brokerage shall
establish, maintain, and enforce a written policy and procedures
reasonably designed to ensure compliance with the requirements of
this subchapter.
Sec. 18.058. POLICIES AND PROCEDURES FOR EXTERNAL
COMPLIANCE. A buy-side brokerage, sell-side brokerage, digital
advertising exchange, or other person when acting as a buyer or
seller of digital advertising, as applicable, that is not subject
to the prohibitions under Section 18.051 shall establish, maintain,
and enforce a written policy and procedures reasonably designed to
ensure that those persons operate separately from and independently
of one another and transact business with one another at arm's
length.
Sec. 18.059. FAIR ACCESS DUTY. A digital advertising
exchange shall provide to each buyer and seller in the exchange fair
access, including access with respect to operations of the
exchange, colocation, any technology systems or data, information
related to transactions, service, or products offered, exchange
processes, and functionality.
Sec. 18.060. TIME SYNCHRONIZATION. A digital advertising
exchange, buy-side brokerage, or sell-side brokerage shall
synchronize and maintain the exchange's or brokerage's business
clocks at a minimum to within a two-millisecond tolerance of the
time maintained by the atomic clock of the National Institute of
Standards and Technology.
Sec. 18.061. DATA OWNERSHIP. All records pertaining to an
order solicited or submitted by a brokerage customer, and the
subsequent result of the order, remain the property of the
brokerage customer, including any bid solicited from or submitted
to a digital advertising exchange, unless the information is
publicly available.
Sec. 18.062. ROUTING PRACTICES DISCLOSURE. A buy-side
brokerage or sell-side brokerage shall:
(1) make publicly available for each calendar quarter
a report on the order routing practices of the buy-side brokerage or
sell-side brokerage, as applicable, for digital advertisements
during that quarter broken down by calendar month; and
(2) retain the report described by Subdivision (1)
posted on an Internet website that is free and readily accessible to
the public until the third anniversary of the date the report is
posted.
Sec. 18.063. FORMAT. A report made available under Section
18.062 must:
(1) be rendered in a format that is readily
informative to the average brokerage customer; and
(2) include for the 10 venues to which the largest
number of total bid requests or bid responses were routed for
execution and for any venue to which five percent or more of bid
requests or bid responses were routed for execution:
(A) the total number of bids routed;
(B) the total number of bids executed;
(C) the fill rate of bids;
(D) the average net execution fee or rebate per
1,000 impressions;
(E) the average time in milliseconds between when
a bid request is sent and when a bid response is received; and
(F) the value and form of any compensation given
in exchange for routing or execution.
Sec. 18.064. CERTIFICATION. A digital advertising
exchange, buy-side brokerage, or sell-side brokerage shall
annually certify to the attorney general that the digital
advertising exchange has complied with the requirements of this
subchapter.
SUBCHAPTER C. ENFORCEMENT
Sec. 18.101. ENFORCEMENT BY THE ATTORNEY GENERAL. (a) The
attorney general may bring an action on behalf of persons in this
state injured in their business or property by a violation of this
chapter.
(b) In an action brought under this section, the attorney
general is entitled to:
(1) obtain injunctive relief; and
(2) recover actual damages sustained by the injured
persons.
Sec. 18.102. DAMAGES. (a) In an action brought under
Section 18.101, a court may award on a prompt motion by the attorney
general simple interest on actual damages awarded under that
section.
(b) A court may not award any damages under this subchapter
that are duplicative of damages awarded before the date of the award
in a separate civil action pertaining to the same conduct and
injured party.
(c) A court awarding damages to a person in a civil action
after the date of an award of damages under this subchapter that
would be duplicative of damages awarded to the attorney general on
behalf of the person shall direct that the damages must first be
paid by the office of the attorney general from amounts in the
antitrust consumer damages fund under Section 18.103 and, to the
extent the damages are not fully paid by the office of the attorney
general from amounts in that fund, shall then be paid by the
defendant.
Sec. 18.103. ANTITRUST CONSUMER DAMAGES FUND. (a) The
antitrust consumer damages fund is a special fund in the state
treasury outside the general revenue fund to be administered and
used by the attorney general for the purposes authorized by this
chapter.
(b) Notwithstanding any other law, any amounts received by
the attorney general under an award under this subchapter shall be
deposited in the fund and shall be available to the attorney
general, without further appropriation, for distribution to
persons harmed by a violation of this chapter.
(c) Effective on the 10th anniversary of the date on which
an award is received under Section 18.102, the unobligated balances
in the fund of amounts that were received under the award are
rescinded and shall be deposited in the general revenue fund of the
state treasury.
Sec. 18.104. DIVESTITURE ENFORCEMENT. The attorney general
may bring an action on behalf of this state and may obtain
injunctive relief on showing by a preponderance of the evidence
that the defendant has:
(1) violated Section 18.106; or
(2) undertaken a required divestiture that
unnecessarily harms or threatens competition in any market in this
state.
Sec. 18.105. PRIVATE RIGHT OF ACTION. (a) A brokerage
customer in this state harmed by a knowing violation of Subchapter B
may bring an action to obtain injunctive relief, if appropriate,
and to recover damages in the amount of the greater of:
(1) $1 million for each month in which a violation of
Subchapter B occurred and reasonable attorney's fees; or
(2) actual damages and reasonable attorney's fees.
(b) No person subject to this chapter may require a class
action waiver for a claim under this chapter, including for
arbitration of a claim under this chapter.
(c) A person harmed by a violation of Section 18.051 may
bring a civil action for a violation of that section any time after
the later of:
(1) the expiration of any applicable divestiture
deadline; or
(2) the expiration of the deadline under Section
18.106 if no filing has been made.
Sec. 18.106. DIVESTITURE. (a) An agreement or other
document setting out the terms of a required divestiture must be
filed with the attorney general not later than the later of:
(1) the effective date of the agreement or other
document; or
(2) the earlier of:
(A) the 30th day after the date on which an
agreement making a required divestiture under this chapter is
executed; or
(B) the 180th day after meeting a criterion
specified by Section 18.051.
(b) The attorney general shall approve a required
divestiture on a showing by the person making the divestiture that
the terms of the divestiture, including the qualifications of any
counterparties to the divestiture, will not unnecessarily harm or
threaten competition in any market in this state.
(c) The attorney general shall grant or deny approval of a
required divestiture, unless agreed to by the parties, not later
than the later of:
(1) the 60th day after receipt of all information
obtained under Subsection (f); or
(2) the 60th day after receipt of the filing made under
Subsection (a).
(d) A divestiture must be completed not later than the
divestiture deadline.
(e) The attorney general shall issue and maintain guidance
on the divestiture process under this section and the certification
requirement under Section 18.064.
(f) The attorney general may request or issue a civil
investigative demand under Section 15.10 for documents from any
person involved in a required divestiture to determine the
competitive effects of the divestiture.
SECTION 2. The attorney general shall issue guidance as
required by Section 18.106(e), Business & Commerce Code, as added
by this Act, not later than the 120th day after the effective date
of this Act.
SECTION 3. This Act takes effect September 1, 2025.