Antitrust & Competition Policy

Is Digital Utopianism Dead? And Other Questions

by Larry Downes on March 10, 2011 · 0 comments

What I hoped would be a short blog post to accompany the video from Geoff Manne and my appearances this week on PBS’s “Ideas in Action with Jim Glassman” turned out to be a very long article which I’ve published over at Forbes.com.

I apologize to Geoff for taking an innocent comment he made on the broadcast completely out of context, and to everyone else who chooses to read 2,000 words I’ve written in response.

So all I’ll say here is that Geoff Manne and I taped the program in January, as part of the launch of TechFreedom and of “The Next Digital Decade.” Enjoy!

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Apple, Antitrust, and the FTC

by Joshua Wright on February 28, 2011 · 0 comments

[Cross-posted at Truth on the Market]

Antitrust investigators continue to see smoke rising around Apple and the App Store. From the WSJ:

For starters, subscriptions must be sold through Apple’s App Store. For instance, a magazine that wants to publish its content on an iPad cannot include a link in an iPad app that would direct readers to buy subscriptions through the magazine’s website. Apple earns a 30% share of any subscription sold through its App Store. …

A federal official confirmed to The Washington Post that the government is looking at Apple’s subscription service terms for potential antitrust issues but said there is no formal investigation. Speaking on the condition of anonymity because he was not authorized to comment publicly, the official said that the government routinely tracks new commercial initiatives influencing markets.

Investigators certainly suspect Apple of myriad antitrust violations; there is even some absurd talk about breaking up Apple. There is definitely smoke — but is there fire?

The most often discussed bar to an antitrust action against Apple is the one many regulators simply assume into existence: Apple must have market power in an antitrust-relevant market. While Apple’s share of the smartphone market is only 16% or so, its share of the tablet computing market is much larger. The WSJ, for example, reports that Apple accounts for about three-fourths of tablet computer sales. I’ve noted before in the smartphone context that this requirement should not be consider a bar to FTC suit, given the availability of Section 5; however, as the WSJ explains, market definition must be a critical issue in any Apple investigation or lawsuit:

Publishers, for example, might claim that Apple dominates the market for consumer tablet computers and that it has allegedly used that commanding position to restrict competition. Apple, in turn, might define the market to include all digital and print media, and counter that any publisher not happy with Apple’s terms is free to still reach its customers through many other print and digital outlets.

One must conduct a proper, empirically-grounded analysis of the relevant data to speak with confidence; however, it suffices to say that I am skeptical that tablet sales would constitute a relevant market. Continue reading →

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Net Neutrality Drama Continues – And What About (President) Obama?

by Larry Downes on February 23, 2011 · 4 comments

Following up on my Congressional testimony last week, I’ve written two articles on how the House and Senate are moving forward with plans to undo the FCC’s December 23,2010 “Open Internet” order, aka net neutrality. For my inaugural post for Forbes, I write about the experience of being a witness before the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the Internet, and provide some background on how the FCC found itself backed into a corner that led to the unpopular (on both sides) new rules. See “Deep in the Net Neutrality Trenches.”

On CNET this morning, I review in detail the steps taken last week by Congress. These include two hearings, one featuring all five FCC Commissioners. After the hearings, the House approved an amendment to the on-going budget negotiations that would deny the agency any funding to implement or enforce its rules. Later, both the House and Senate issued a Joint Resolution of Disapproval, which, if passed, would nullify the rule-making and deny the FCC future authority to try again. Continue reading →

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Is Apple’s digital subscription plan good or bad for consumers?

by Jerry Brito on February 21, 2011 · 6 comments

There has been much hand wringing about Apple’s new in-app subscription system for publishers and even [one report](http://online.wsj.com/article/SB10001424052748704657704576150350669475800.html) that antitrust enforcers have begun looking into the matter.

The purpose of the antitrust laws is to protect consumers, not companies, so the simple fact that Apple will take a 30% cut from publishers who want to offer subscriptions on iOS devices should not be enough to trigger scrutiny. So, my guess at what a theory of consumer harm against Apple might be is this: Apple not only takes a 30% cut of any subscription purchased in-app on an iOS device, it also requires publishers to offer as low a price on iOS as they offer anywhere else. Therefore, a case could be made that a publisher faced with Apple’s 30% fee (and unable to simply raise prices by 30% just on Apple’s devices) might raise prices on all platforms enough to cover Apple’s cut. So, assuming market power of course, Apple’s new policy could affect all digital subscription pricing.

Yet it’s hard to talk about market power in such a nascent sector. Digital subscriptions didn’t exist 5 years ago, and they do now in large part thanks to Apple. The right market structure is sorting itself out right now and yes, Apple does seem to have a well-earned lead as the innovator in the space. But if the original Mac taught us anything, is that a lead in a nascent sector is no guarantee of monopoly and regulators would be creating serious disincentives to innovation if they meddle.

Digital publishing is very much a contestable market. I hardly need to point out that the day after Apple’s announcement, [Google made public](http://news.cnet.com/8301-17938_105-20032217-1.html) its own very competitive subscription service. And while the iPad is ahead of the game right now, Android tablets are only now beginning to hit the market. If [declining iPhone market share](http://thenextweb.com/apple/2010/02/01/iphone-shedding-market-share-increasingly-competitive-market/) is any indication, Android will nip at Apple’s heels in the tablet space as well. And let’s not forget other formidable (and somewhat-formidable) competitors in the likes of HP’s WebOS, Microsoft-Nokia, and RIM.

Moreover, while the consumer harm is speculative, the potential consumer benefits of Apple’s subscription service are pretty clear:

– **Ease of Use & Security:** Apple’s app store is a tremendous innovation if nothing else because it creates a simple payment system consumers trust. iPad users will tell you they much prefer one-click subscriptions managed through Apple than having to create many accounts with disparate publishers, which incidentally improves security.
– **Privacy:** One thing that sets Google’s offering apart from Apple’s is that they will share with publishers information about subscribers. Apple, on the other hand, gives users the choice of sharing information with publishers, and then it’s only limited information. This should please privacy conscious consumers.
– **Subsidized Devices:** As a [recently viral article in Wired](http://www.wired.com/gadgetlab/2011/02/ipad-price/) suggests, the reason Apple is able to offer the iPad entry price of $500 (which rivals are having a hard time meeting) is that Apple is a vertically integrated company. This means that the 30% from subscriptions potentially subsidizes the iPad’s low price, thus benefitting consumers.

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Is Twitter a utility like water?

by Jerry Brito on February 15, 2011 · 2 comments

Speaking at the Mobile World Congress in Barcelona today, Twitter CEO Dick Costolo [said](http://www.readwriteweb.com/mobile/2011/02/twitter-goal-to-be-like-water.php) he wants the service to become as ubiquitous and simple as tap water. But he should be careful what he wishes for.

Search Engine Land is already asking, “[Twitter As Utility, Like Running Water?](http://searchengineland.com/twitter-as-utility-like-running-water-thats-goal-says-ceo-64803)” The thing about water is that it tends to be an indispensable natural monopoly, and therefore regulated. Twitter today controls [access to its “firehose”](http://networkeffect.allthingsd.com/20110202/twitter-offers-metered-pricing-for-firehose-of-tweets/) of tweet data, but access to utilities like water is mandated open and prices are set by regulators.

As I discussed [recently on the podcast](http://surprisinglyfree.com/2010/08/30/danny-sullivan-on-search-neutrality/) with Danny Sullivan, some have already suggested Google should be treated like a utility and brought under a regime of “search neutrality.” Harvard’s danah boyd has been banging the “[regulate Facebook as a utility](http://www.zephoria.org/thoughts/archives/2010/05/15/facebook-is-a-utility-utilities-get-regulated.html)” drum for quite some time. And Just today Wharton’s Kevin Werbach put out a draft of his new law review article: “[The Network Utility](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758878).”

Of course, as I already mentioned, it’s unsurmountable monopolies that should be regulated, and it would be a stretch to say that either Facebook or Twitter qualify. But I fear we’ll be hearing more and more of this “utility” language in the near future.

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Tim Wu to the FTC: What does it mean?

by Geoffrey Manne on February 9, 2011 · 10 comments

As Adam notes, Columbia lawprof and holder of the dubious distinction of having originated the term and concept of Net Neutrality, Tim Wu, is headed to the FTC as a senior advisor.

Curiously, his guest stint runs for only about four and a half months. As the WSJ reports:

Mr. Wu, 38, will start his new position on Feb. 14 in the FTC’s Office of Policy Planning, and will help the agency to develop policies that affect the Internet and the market for mobile communications and services. The FTC said Mr. Wu will work in the unit until July 31. Mr. Wu, who is taking a leave from Columbia, said that to work after that date he would have to request a further leave from the university.

Mr. Wu’s claim that the source of the date constraint is Columbia doesn’t pass the smell test. Now, it is possible that what he says is literally true–and therefore intentionally misleading. Perhaps he asked only for leave through the end of July and would indeed have to request further leave if he wanted it. But the implication that Columbia would have trouble granting further leave–especially during the summer!–and thus the short tenure seems very fishy to me.

So what else could be going on, while we’re reading inscrutable tea leaves? Well, for one thing, it could be that Wu has already signed on for some not-yet-public role at Columbia that he prefers not to imperil. Maybe associate dean or something like that.

But I have another, completely unsupported speculation. I think the author of The Master Switch (commented on by Josh and me here) and one of the most capable (as far as that goes) proponents of Internet regulation in the land is being brought in to the FTC to help the agency gin up a case against Google.

I think with Google-ITA seemingly approaching its denouement, the FTC knows or believes that Google is either planning to abandon the merger or else enter into an (insufficiently-restrictive for the FTC) settlement with the DOJ. In either case, not a full-blown investigation and intervention into Google’s business. So the FTC is preparing its own Section 5 (and Section 2, but who needs that piker when you have the real deal in Section 5?) (for previous TOTM takes on Section 5, see, e.g., here and here) case and has brought in Wu to help. Given the switching back and forth between the DOJ and FTC in reviewing Google mergers, it could very well be (I haven’t kept close tabs on Google’s proposed acquisitions) that there’s even already another merger review in waiting at the FTC on which the agency is planning to build its case.

But the phase of the case requiring Wu’s full attention–the conceptual early phase–should be completed by the end of July, so no need to detain him further.

More concretely, I would point out that it says a lot about the agency’s mindset that it is bringing in the likes of Wu to help it with its ongoing forays into the regulation of Internet businesses. By comparison, I would just point out that Chairman Majoras’ FTC brought in our own Josh Wright as the agency’s first Scholar in Residence. Sends a very different signal, don’t you think?

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Two Years on the Internet is an Eternity

by Larry Downes on February 8, 2011 · 1 comment

Video is now available for all of the excellent programming at this year’s State of The Net 2011 conference. (Programming will also be available over time on C-SPAN’s video library.) The Conference, organized by the Advisory Committee to the Congressional Internet Caucus, featured Members of Congress, leading academics, Administration, agency, and Congressional staff and other provocateurs. Topics this year ranged from social networking, Wikileaks, COICA, copyright, privacy, security, broadband policy and, of course, the end-of-the-year vote by the FCC to approve new rules for network management by broadband providers, aka net neutrality. Continue reading →

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The Problem of Search Engines as Essential Facilities

by Geoffrey Manne on February 4, 2011 · 5 comments

For my contribution to Berin Szoka and Adam Marcus’ (of TechFreedom fame) awesome Next Digital Decade book, I wrote about search engine “neutrality” and the implicit and explicit claims that search engines are “essential facilities.” (Check out the other essays on this topic by Frank Pasquale, Eric Goldman and James Grimmelmann, linked to here, under Chapter 7).

The scare quotes around neutrality are there because the term is at best a misnomer as applied to search engines and at worst a baseless excuse for more regulation of the Internet. (The quotes around essential facilities are there because it is a term of art, but it is also scary). The essay is an effort to inject some basic economic and legal reasoning into the overly-emotionalized (is that a word?) issue.

So, what is wrong with calls for search neutrality, especially those rooted in the notion of Internet search (or, more accurately, Google, the policy scolds’ bête noir of the day) as an “essential facility,” and necessitating government-mandated access? As others have noted, the basic concept of neutrality in search is, at root, farcical. The idea that a search engine, which offers its users edited access to the most relevant websites based on the search engine’s assessment of the user’s intent, should do so “neutrally” implies that the search engine’s efforts to ensure relevance should be cabined by an almost-limitless range of ancillary concerns. Nevertheless, proponents of this view have begun to adduce increasingly detail-laden and complex arguments in favor of their positions, and the European Commission has even opened a formal investigation into Google’s practices, based largely on various claims that it has systematically denied access to its top search results (in some cases paid results, in others organic results) by competing services, especially vertical search engines. To my knowledge, no one has yet claimed that Google should offer up links to competing general search engines as a remedy for its perceived market foreclosure, but Microsoft’s experience with the “Browser Choice Screen” it has now agreed to offer as a consequence of the European Commission’s successful competition case against the company is not encouraging. These more superficially sophisticated claims are rooted in the notion of Internet search as an “essential facility” – a bottleneck limiting effective competition. These claims, as well as the more fundamental harm-to-competitor claims, are difficult to sustain on any economically-reasonable grounds. To understand this requires some basic understanding of the economics of essential facilities, of Internet search, and of the relevant product markets in which Internet search operates.

The essay goes into much more detail, of course, but the basic point is that Google’s search engine is not, in fact, “essential” in the economically-relevant sense. Rather, Google’s competitors and other detractors have basically built precisely the most problematic sort of antitrust case, where success itself is penalized (in this case, Google is so good at what it does it just isn’t fair to keep it all to itself!). Continue reading →

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Comcast-NBC & the FCC’s Unprecedented Merger Shakedown

by Adam Thierer on January 20, 2011 · 119 comments

At this week’s excellent State of the Net 2011 event, I participated in a panel discussion about the future of the online video marketplace. Unsurprisingly, a great deal of time was spent discussing the Federal Communications Commission’s (FCC) recent approval of the proposed merger of Comcast and NBC Universal (NBCU). On Tuesday, the agency voted 4-1 to approve the deal with myriad conditions and “voluntary” concessions being attached. The FCC voted on the matter and issued a short press release and late today issued its final 279-page order.

The Commission’s Comcast-NBCU order represents an unprecedented regulatory shakedown of a company that obviously would have done just about anything to gain approval of the deal. I believe the conditions the FCC has imposed on the deal, which are to run for seven years, are tantamount to a death by a thousand cuts for the deal and, ultimately, could lead to its failure. That’s because the requirements placed on the new entity make it practically impossible for Comcast to leverage the content it is acquiring from NBCU and profit from it such that they can recoup the significant costs associated with the deal.

In essence, Comcast-NBCU was forced to preemptively surrender much of its intellectual property rights by agreeing to share most of their content properties with others on terms someone else will determine. That’s a recipe for disaster. If Comcast-NBCU doesn’t have the right and ability to cut deals on terms that they find advantageous to the company and its shareholders, then why go through with this deal at all? Isn’t the whole point of such a deal with get some additional in-house content properties — something Comcast almost completely lacked previously — such that it would have some content gems to highlight and leverage in an attempt to attract new customers (or just keep old ones)? If someone else is constantly setting the terms of their deals, it will limit the inherent value of the IP owned by Comcast-NBCU and sap most of the value from the deal. Continue reading →

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Did Antitrust Really Make a Difference in Major High-Tech Cases?

by Adam Thierer on January 10, 2011 · 2 comments

The Technology Policy Institute has released an interesting new study from Robert Crandall and Charles Jackson on “Antitrust in High-Tech Industries,” which takes a close look at the impact of antitrust law in the three most high-profile technology cases of the last half century: IBM, AT&T and Microsoft. Crandall and Jackson conclude:

In each of our three cases, the ultimate source of major changes in the competitive landscape appears to have been innovation and new technology — technology that was apparently not unleashed by the antitrust litigation. In each case, the government did not and probably could not see how technology would develop over time. Therefore, it was difficult for the government to design remedies that would accelerate competition when this competition developed from new technologies.

I enjoyed the paper and encourage others to read the entire thing. It’s very much in line with what we’ve written here in the past on the antitrust and high-tech markets. See, for example, my review of Gary Reback’s recent book on antitrust and high-tech markets. As I noted there, the crucial, ‘conflict of visions‘ issue comes down to an appreciation for dynamic competition and technological evolution over the sort of static competition, fixed-pie mindset that so many antitrust defenders espouse. Those of us who believe in dynamic competition see markets in a constant state of flux and expect that sub-optimal market developments or configurations are exactly the spark that incentivizes new form of market entry, innovation, technological disruption, price competition, and so on. But the static competition crowd looks at the same situation and imagines that the only hope is to wheel in the wrecking ball of antitrust regulation since they have little faith that things might change for the better. Moreover, they ignore the profound costs associated with such regulation and litigation. Crandall and Jackson’s paper explains why patience is the better policy.