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gatekeeper power refers to a variety of effects, including the ability to decide which products and services can be offered to consumers and to control the timing and method by which they are delivered. in the context of online services, gatekeepers can also influence the formation of markets and the regulation of the delivery of digital products and services. gatekeepers can achieve these effects by allowing the development and operation of the digital platforms that are the physical infrastructure of the digital economy. they can do so by controlling the technologies that are used to transmit information and the products that they include, whether those are tools for communication, goods, or services. gatekeepers can also set the rules that govern the delivery of online services. finally, gatekeepers can influence the business models of digital companies, whether by allowing or prohibiting access to or monetization of online platforms or the products and services they provide.
the digital market act establishes a three-tiered system of regulation that relies on clear lines of demarcation. first, the eu recognizes that the new e-commerce rules will require considerable effort and cooperation. 255 the new legislation does not rely on assigning regulatory responsibility to a specific agency or to a particular set of entities, such as digital platforms, instead carving out the responsibility for a future regulatory agency or to a future regulatory body for online services to address it. second, the digital markets act seeks to establish a clear regulatory regime for online services by creating three classes of services, based on the relative risks posed by the services, and by creating three regulatory regimes for each class, based on the relative needs and risks in each. third, the eu recognizes that those european markets that are already regulated by another agency should not duplicate the existing regime, but instead should complement that existing regime. 256 the eu also made clear that it saw the need for national level regulation, which the eu expressly did not envision as part of its new regime. finally, the digital markets act offers an increased role for the european data protection supervisor, which will be able to consider individual complaints as well as consider systemic issues that affect a class of services. 257
the third threshold of $28 billion in fair market value or average u.s. market capitalization in the past financial year is similar to the digital markets act thresholds around the world. however, u. market capitalization is expected to be lower than comparable eu countries. while the eus digital markets act would set a benchmark for the european commission to set a benchmark for the european union and to keep a check on the single market, the digital markets act in the united states would have a more direct regulatory impact on the united states market.
section 5 considers the importance of online services from the perspective of american democracy and civil rights. it focuses on the harms from online services in the context of other online communication tools, including social media. it also considers how pervasive online services have become in the daily lives of americans. finally, it offers a framework for addressing these problems.
the $90 billion threshold for market capitalization is consistent with the eus digital markets act proposals around economic importance. 34 it is also consistent with the digital markets act threshold of 65 billion used the average market cap of the euro stoxx 50, adjusted for future growth expectations. the $90 billion threshold is also consistent with the $600 billion cross-border threshold in the american choice and innovation online act, which the u.s. house of representatives introduced in 2017 to ensure the united states government does not overstep when it comes to regulating online services outside of the united states. 35 the american choice and innovation online act defines the universe for regulatory action as, among other things, any company that has at least $600 billion in fair market value or average market capitalization in the past financial year, or $9 billion in revenue in the past three years. both thresholds are based on the average market cap of the euro stoxx 50, adjusted for future growth expectations.
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