Archives For antitrust

A screenshot of a cell phone

Description automatically generated

This is the first in a series of TOTM blog posts discussing the Commission’s recently published Google Android decision. It draws on research from a soon-to-be published ICLE white paper.

The European Commission’s recent Google Android decision will surely go down as one of the most important competition proceedings of the past decade. And yet, an in-depth reading of the 328 page decision should leave attentive readers with a bitter taste.

One of the Commission’s most significant findings is that the Android operating system and Apple’s iOS are not in the same relevant market, along with the related conclusion that Apple’s App Store and Google Play are also in separate markets.

This blog post points to a series of flaws that undermine the Commission’s reasoning on this point. As a result, the Commission’s claim that Google and Apple operate in separate markets is mostly unsupported.

1. Everyone but the European Commission thinks that iOS competes with Android

Surely the assertion that the two predominant smartphone ecosystems in Europe don’t compete with each other will come as a surprise to… anyone paying attention: 

A screenshot of a cell phone

Description automatically generated

Apple 10-K:

The Company believes the availability of third-party software applications and services for its products depends in part on the developers’ perception and analysis of the relative benefits of developing, maintaining and upgrading such software and services for the Company’s products compared to competitors’ platforms, such as Android for smartphones and tablets and Windows for personal computers.

Google 10-K:

We face competition from: Companies that design, manufacture, and market consumer electronics products, including businesses that have developed proprietary platforms.

This leads to a critical question: Why did the Commission choose to depart from the instinctive conclusion that Google and Apple compete vigorously against each other in the smartphone and mobile operating system market? 

As explained below, its justifications for doing so were deeply flawed.

2. It does not matter that OEMs cannot license iOS (or the App Store)

One of the main reasons why the Commission chose to exclude Apple from the relevant market is that OEMs cannot license Apple’s iOS or its App Store.

But is it really possible to infer that Google and Apple do not compete against each other because their products are not substitutes from OEMs’ point of view? 

The answer to this question is likely no.

Relevant markets, and market shares, are merely a proxy for market power (which is the appropriate baseline upon which build a competition investigation). As Louis Kaplow puts it:

[T]he entire rationale for the market definition process is to enable an inference about market power.

If there is a competitive market for Android and Apple smartphones, then it is somewhat immaterial that Google is the only firm to successfully offer a licensable mobile operating system (as opposed to Apple and Blackberry’s “closed” alternatives).

By exercising its “power” against OEMs by, for instance, degrading the quality of Android, Google would, by the same token, weaken its competitive position against Apple. Google’s competition with Apple in the smartphone market thus constrains Google’s behavior and limits its market power in Android-specific aftermarkets (on this topic, see Borenstein et al., and Klein).

This is not to say that Apple’s iOS (and App Store) is, or is not, in the same relevant market as Google Android (and Google Play). But the fact that OEMs cannot license iOS or the App Store is mostly immaterial for market  definition purposes.

 3. Google would find itself in a more “competitive” market if it decided to stop licensing the Android OS

The Commission’s reasoning also leads to illogical outcomes from a policy standpoint. 

Google could suddenly find itself in a more “competitive” market if it decided to stop licensing the Android OS and operated a closed platform (like Apple does). The direct purchasers of its products – consumers – would then be free to switch between Apple and Google’s products.

As a result, an act that has no obvious effect on actual market power — and that could have a distinctly negative effect on consumers — could nevertheless significantly alter the outcome of competition proceedings on the Commission’s theory. 

One potential consequence is that firms might decide to close their platforms (or refuse to open them in the first place) in order to avoid competition scrutiny (because maintaining a closed platform might effectively lead competition authorities to place them within a wider relevant market). This might ultimately reduce product differentiation among mobile platforms (due to the disappearance of open ecosystems) – the exact opposite of what the Commission sought to achieve with its decision.

This is, among other things, what Antonin Scalia objected to in his Eastman Kodak dissent: 

It is quite simply anomalous that a manufacturer functioning in a competitive equipment market should be exempt from the per se rule when it bundles equipment with parts and service, but not when it bundles parts with service [when the manufacturer has a high share of the “market” for its machines’ spare parts]. This vast difference in the treatment of what will ordinarily be economically similar phenomena is alone enough to call today’s decision into question.

4. Market shares are a poor proxy for market power, especially in narrowly defined markets

Finally, the problem with the Commission’s decision is not so much that it chose to exclude Apple from the relevant markets, but that it then cited the resulting market shares as evidence of Google’s alleged dominance:

(440) Google holds a dominant position in the worldwide market (excluding China) for the licensing of smart mobile OSs since 2011. This conclusion is based on: 

(1) the market shares of Google and competing developers of licensable smart mobile OSs […]

In doing so, the Commission ignored one of the critical findings of the law & economics literature on market definition and market power: Although defining a narrow relevant market may not itself be problematic, the market shares thus adduced provide little information about a firm’s actual market power. 

For instance, Richard Posner and William Landes have argued that:

If instead the market were defined narrowly, the firm’s market share would be larger but the effect on market power would be offset by the higher market elasticity of demand; when fewer substitutes are included in the market, substitution of products outside of the market is easier. […]

If all the submarket approach signifies is willingness in appropriate cases to call a narrowly defined market a relevant market for antitrust purposes, it is unobjectionable – so long as appropriately less weight is given to market shares computed in such a market.

Likewise, Louis Kaplow observes that:

In choosing between a narrower and a broader market (where, as mentioned, we are supposing that the truth lies somewhere in between), one would ask whether the inference from the larger market share in the narrower market overstates market power by more than the inference from the smaller market share in the broader market understates market power. If the lesser error lies with the former choice, then the narrower market is the relevant market; if the latter minimizes error, then the broader market is best.

The Commission failed to heed these important findings.

5. Conclusion

The upshot is that Apple should not have been automatically excluded from the relevant market. 

To be clear, the Commission did discuss this competition from Apple later in the decision. And it also asserted that its findings would hold even if Apple were included in the OS and App Store markets, because Android’s share of devices sold would have ranged from 45% to 79%, depending on the year (although this ignores other potential metrics such as the value of devices sold or Google’s share of advertising revenue

However, by gerrymandering the market definition (which European case law likely permitted it to do), the Commission ensured that Google would face an uphill battle, starting from a very high market share and thus a strong presumption of dominance. 

Moreover, that it might reach the same result by adopting a more accurate market definition is no excuse for adopting a faulty one and resting its case (and undertaking its entire analysis) on it. In fact, the Commission’s choice of a faulty market definition underpins its entire analysis, and is far from a “harmless error.” 

I shall discuss the consequences of this error in an upcoming blog post. Stay tuned.

The Economists' Hour

John Maynard Keynes wrote in his famous General Theory that “[t]he ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.” 

This is true even of those who wish to criticize the effect of economic thinking on society. In his new book, The Economists’ Hour: False Prophets, Free Markets, and the Fracture of Society,  New York Times economics reporter Binyamin Appelbaum aims to show that economists have had a detrimental effect on public policy. But the central irony of the Economists’ Hour is that in criticizing the influence of economists over policy, Appelbaum engages in a great deal of economic speculation himself. Appelbaum would discard the opinions of economists in favor of “the lessons of history,” but all he is left with is unsupported economic reasoning. 

Much of The Economists’ Hour is about the history of ideas. To his credit, Appelbaum does a fair job describing Anglo-American economic thought post-New Deal until the start of the 21st century. Part I mainly focuses on macroeconomics, detailing the demise of the Keynesian consensus and the rise of the monetarists and supply-siders. If the author were not so cynical about the influence of economists, he might have represented these changes in dominant economic paradigms as an example of how science progresses over time.  

Interestingly, Appelbaum often makes the case that the insights of economists have been incredibly beneficial. For instance, in the opening chapter, he describes how Milton Friedman (one of the main protagonists/antagonists of the book, depending on your point of view) and a band of economists (including Martin Anderson and Walter Oi) fought the military establishment and ended the draft. For that, I’m sure most of us born in the past fifty years would be thankful. One suspects that group includes Appelbaum, though he tries to find objections, claiming for example that “by making war more efficient and more remote from the lives of most Americans, the end of the draft may also have made war more likely.” 

Appelbaum also notes positively that economists, most prominently Alfred Kahn in the United States, led the charge in a largely beneficial deregulation of the airline and trucking industries in the late 1970s and early 1980s. 

Yet, overall, it is clear that Appelbaum believes the “outsized” influence of economists over policymaking itself fails the cost-benefit analysis. Appelbaum focuses on the costs of listening too much to economists on antitrust law, trade and development, interest rates and currency, the use of cost-benefit analysis in regulation, and the deregulation of the financial services industry. He sees the deregulation of airlines and trucking as the height of the economists’ hour, and its close with the financial crisis of the late-2000s. His thesis is that (his interpretation of) economists’ notions of efficiency, their (alleged) lack of concern about distributional effects, and their (alleged) myopia has harmed society as their influence over policy has grown.

In his chapter on antitrust, for instance, Appelbaum admits that even though “[w]e live in a new era of giant corporations… there is little evidence consumers are suffering.” Appelbaum argues instead that lax antitrust enforcement has resulted in market concentration harmful to workers, democracy, and innovation. In order to make those arguments, he uncritically cites the work of economists and non-economist legal scholars that make economic claims. A closer inspection of each of these (economic) arguments suggests there is more to the story.

First, recent research questions the narrative that increasing market concentration has resulted in harm to consumers, workers, or society. In their recent paper, “The Industrial Revolution in Services,” Chang-Tai Hsieh of the University of Chicago and Esteban Rossi-Hansberg of Princeton University argue that increasing concentration is primarily due to technological innovation in services, retail, and wholesale sectors. While there has been greater concentration at the national level, this has been accompanied by increased competition locally as national chains expanded to more local markets. Of note, employment has increased in the sectors where national concentration is rising.

The rise in national industry concentration in the US between 1977 and 2013 is driven by a new industrial revolution in three broad non-traded sectors: services, retail, and wholesale. Sectors where national concentration is rising have increased their share of employment, and the expansion is entirely driven by the number of local markets served by firms. Firm employment per market has either increased slightly at the MSA level, or decreased substantially at the county or establishment levels. In industries with increasing concentration, the expansion into more markets is more pronounced for the top 10% firms, but is present for the bottom 90% as well. These trends have not been accompanied by economy-wide concentration. Top U.S. firms are increasingly specialized in sectors with rising industry concentration, but their aggregate employment share has remained roughly stable. We argue that these facts are consistent with the availability of a new set of fixed-cost technologies that enable adopters to produce at lower marginal costs in all markets. We present a simple model of firm size and market entry to describe the menu of new technologies and trace its implications.

In other words, any increase in concentration has been sector-specific and primarily due to more efficient national firms expanding into local markets. This has been associated with lower prices for consumers and more employment opportunities for workers in those sectors.

Appelbaum also looks to Lina Khan’s law journal article, which attacks Amazon for allegedly engaging in predatory pricing, as an example of a new group of young scholars coming to the conclusion that there is a need for more antitrust scrutiny. But, as ICLE scholars Alec Stapp and Kristian Stout have pointed out, there is very little evidence Amazon is actually engaging in predatory pricing. Khan’s article is a challenge to the consensus on how to think about predatory pricing and consumer welfare, but her underlying economic theory is premised on Amazon having such a long time horizon that they can lose money on retail for decades (even though it has been profitable for some time), on the theory that someday down the line they can raise prices after they have run all retail competition out.

Second, Appelbaum argues that mergers and acquisitions in the technology sector, especially acquisitions by Google and Facebook of potential rivals, has decreased innovation. Appelbaum’s belief is that innovation is spurred when government forces dominant players “to make room” for future competition. Here he draws in part on claims by some economists that dominant firms sometimes engage in “killer acquisitions” — acquiring nascent competitors in order to reduce competition, to the detriment of consumer welfare. But a simple model of how that results in reduced competition must be balanced by a recognition that many companies, especially technology startups, are incentivized to innovate in part by the possibility that they will be bought out. As noted by the authors of the leading study on the welfare effects of alleged “killer acquisitions”,

“it is possible that the presence of an acquisition channel also has a positive effect on welfare if the prospect of entrepreneurial exit through acquisition (by an incumbent) spurs ex-ante innovation …. Whereas in our model entrepreneurs are born with a project and thus do not have to exert effort to come up with an idea, it is plausible that the prospect of later acquisition may motivate the origination of entrepreneurial ideas in the first place… If, on the other hand, killer acquisitions do increase ex-ante innovation, this potential welfare gain will have to be weighed against the ex-post efficiency loss due to reduced competition. Whether the former positive or the latter negative effect dominates will depend on the elasticity of the entrepreneur’s innovation response.”

This analysis suggests that a case-by-case review is necessary if antitrust plaintiffs can show evidence that harm to consumers is likely to occur due to a merger.. But shifting the burden to merging entities, as Applebaum seems to suggest, will come with its own costs. In other words, more economics is needed to understand this area, not less.

Third, Appelbaum’s few concrete examples of harm to consumers resulting from “lax antitrust enforcement” in the United States come from airline mergers and telecommunications. In both cases, he sees the increased attention from competition authorities in Europe compared to the U.S. at the explanation for better outcomes. Neither is a clear example of harm to consumers, nor can be used to show superior antitrust frameworks in Europe versus the United States.

In the case of airline mergers, Appelbaum argues the gains from deregulation of the industry have been largely given away due to poor antitrust enforcement and prices stopped falling, leading to a situation where “[f]or the first time since the dawn of aviation, it is generally cheaper to fly in Europe than in the United States.” This is hard to square with the data. 

As explained in a recent blog post on Truth on the Market by ICLE’s chief economist Eric Fruits: 

While the concentration and profits story fits the antitrust populist narrative, other observations run contrary to [this] conclusion. For example, airline prices, as measured by price indexes, show that changes in U.S. and EU airline prices have fairly closely tracked each other until 2014, when U.S. prices began dropping. Sure, airlines have instituted baggage fees, but the CPI includes taxes, fuel surcharges, airport, security, and baggage fees. It’s not obvious that U.S. consumers are worse off in the so-called era of rising concentration. 

In fact, one recent study, titled Are legacy airline mergers pro- or anti-competitive? Evidence from recent U.S. airline mergers takes it a step further. Data from legacy U.S. airline mergers appears to show they have resulted in pro-consumer benefits once quality-adjusted fares are taken into account:

Our main conclusion is simple: The recent legacy carrier mergers have been associated with pro-competitive outcomes. We find that, on average across all three mergers combined, nonstop overlap routes (on which both merging parties were present pre-merger) experienced statistically significant output increases and statistically insignificant nominal fare decreases relative to non-overlap routes. This pattern also holds when we study each of the three mergers individually. We find that nonstop overlap routes experienced statistically significant output and capacity increases following all three legacy airline mergers, with statistically significant nominal fare decreases following Delta/Northwest and American/USAirways mergers, and statistically insignificant nominal fare decreases following the United/Continental merger… 

One implication of our findings is that any fare increases that have been observed since the mergers were very unlikely to have been caused by the mergers. In particular, our results demonstrate pro-competitive output expansions on nonstop overlap routes indicating reductions in quality-adjusted fares and a lack of significant anti-competitive effects on connecting overlaps. Hence ,our results demonstrate consumer welfare gains on overlap routes, without even taking credit for the large benefits on non-overlap routes (due to new online service, improved service networks at airports, fleet reallocation, etc.). While some of our results indicate that passengers on non-overlap routes also benefited from the mergers, we leave the complete exploration of such network effects for future research.

In other words, neither part of Applebaum’s proposition, that Europe has cheaper fares and that concentration has led to worse outcomes for consumers in the United States, appears to be true. Perhaps the influence of economists over antitrust law in the United States has not been so bad after all.

Appelbaum also touts the lower prices for broadband in Europe as an example of better competition policy over telecommunications in Europe versus the United States. While prices are lower on average in Europe for broadband, this obfuscates distribution of prices depending on speed tiers. UPenn Professor Christopher Yoo’s 2014 study titled U.S. vs. European Broadband Deployment: What Do the Data Say? found:

U.S. broadband was cheaper than European broadband for all speed tiers below 12 Mbps. U.S. broadband was more expensive for higher speed tiers, although the higher cost was justified in no small part by the fact that U.S. Internet users on average consumed 50% more bandwidth than their European counterparts.

Population density also helps explain differences between Europe and the United States. The closer people are together, the easier it is to build out infrastructure like broadband Internet. The United States is considerably more rural than most European countries. As a result, consideration of prices and speed need to be adjusted to reflect those differences. For instance, the FCC’s 2018 International Broadband Data Report shows a move in position from 23rd to 14th for the United States compared to 28 (mostly European) other countries once population density and income are taken into consideration for fixed broadband prices (Model 1 to Model 2). The United States climbs even further to 6th out of the 29 countries studied if data usage is included and 7th if quality (i.e. websites available in language) is taken into consideration (Model 4).

Country Model 1 Model 2 Model 3 Model 4
Price Rank Price Rank Price Rank Price Rank
Australia $78.30 28 $82.81 27 $102.63 26 $84.45 23
Austria $48.04 17 $60.59 15 $73.17 11 $74.02 17
Belgium $46.82 16 $66.62 21 $75.29 13 $81.09 22
Canada $69.66 27 $74.99 25 $92.73 24 $76.57 19
Chile $33.42 8 $73.60 23 $83.81 20 $88.97 25
Czech Republic $26.83 3 $49.18 6 $69.91 9 $60.49 6
Denmark $43.46 14 $52.27 8 $69.37 8 $63.85 8
Estonia $30.65 6 $56.91 12 $81.68 19 $69.06 12
Finland $35.00 9 $37.95 1 $57.49 2 $51.61 1
France $30.12 5 $44.04 4 $61.96 4 $54.25 3
Germany $36.00 12 $53.62 10 $75.09 12 $66.06 11
Greece $35.38 10 $64.51 19 $80.72 17 $78.66 21
Iceland $65.78 25 $73.96 24 $94.85 25 $90.39 26
Ireland $56.79 22 $62.37 16 $76.46 14 $64.83 9
Italy $29.62 4 $48.00 5 $68.80 7 $59.00 5
Japan $40.12 13 $53.58 9 $81.47 18 $72.12 15
Latvia $20.29 1 $42.78 3 $63.05 5 $52.20 2
Luxembourg $56.32 21 $54.32 11 $76.83 15 $72.51 16
Mexico $35.58 11 $91.29 29 $120.40 29 $109.64 29
Netherlands $44.39 15 $63.89 18 $89.51 21 $77.88 20
New Zealand $59.51 24 $81.42 26 $90.55 22 $76.25 18
Norway $88.41 29 $71.77 22 $103.98 27 $96.95 27
Portugal $30.82 7 $58.27 13 $72.83 10 $71.15 14
South Korea $25.45 2 $42.07 2 $52.01 1 $56.28 4
Spain $54.95 20 $87.69 28 $115.51 28 $106.53 28
Sweden $52.48 19 $52.16 7 $61.08 3 $70.41 13
Switzerland $66.88 26 $65.01 20 $91.15 23 $84.46 24
United Kingdom $50.77 18 $63.75 17 $79.88 16 $65.44 10
United States $58.00 23 $59.84 14 $64.75 6 $62.94 7
Average $46.55 $61.70 $80.24 $73.73

Model 1: Unadjusted for demographics and content quality

Model 2: Adjusted for demographics but not content quality

Model 3: Adjusted for demographics and data usage

Model 4: Adjusted for demographics and content quality

Furthermore, investment and buildout are other important indicators of how well the United States is doing compared to Europe. Appelbaum fails to consider all of these factors when comparing the European model of telecommunications to the United States’. Yoo’s conclusion is an appropriate response:

The increasing availability of high-quality data has the promise to effect a sea change in broadband policy. Debates that previously relied primarily on anecdotal evidence and personal assertions of visions for the future can increasingly take place on a firmer empirical footing. 

In particular, these data can resolve the question whether the U.S. is running behind Europe in the broadband race or vice versa. The U.S. and European mapping studies are clear and definitive: These data indicate that the U.S. is ahead of Europe in terms of the availability of Next Generation Access (NGA) networks. The U.S. advantage is even starker in terms of rural NGA coverage and with respect to key technologies such as FTTP and LTE. 

Empirical analysis, both in terms of top-level statistics and in terms of eight country case studies, also sheds light into the key policy debate between facilities-based competition and service-based competition. The evidence again is fairly definitive, confirming that facilities-based competition is more effective in terms of driving broadband investment than service-based competition. 

In other words, Appelbaum relies on bad data to come to his conclusion that listening to economists has been wrong for American telecommunications policy. Perhaps it is his economic assumptions that need to be questioned.

Conclusion

At the end of the day, in antitrust, environmental regulation, and other areas he reviewed, Appelbaum does not believe economic efficiency should be the primary concern anyway.  For instance, he repeats the common historical argument that the purpose of the Sherman Act was to protect small businesses from bigger, and often more efficient, competitors. 

So applying economic analysis to Appelbaum’s claims may itself be an illustration of caring too much about economic models instead of learning “the lessons of history.” But Appelbaum inescapably assumes economic models of its own. And these models appear less grounded in empirical data than those of the economists he derides. There’s no escaping mental models to understand the world. It is just a question of whether we are willing to change our mind if a better way of understanding the world presents itself. As Keynes is purported to have said, “When the facts change, I change my mind. What do you do, sir?”

For all the criticism of economists, there at least appears to be a willingness among them to change their minds, as illustrated by the increasing appreciation for anti-inflationary monetary policy among macroeconomists described in The Economists’ Hour. The question which remains is whether Appelbaum and other critics of the economic way of thinking are as willing to reconsider their strongly held views when they conflict with the evidence.

Today, Reuters reports that Germany-based ThyssenKrupp has received bids from three bidding groups for a majority stake in the firm’s elevator business. Finland’s Kone teamed with private equity firm CVC to bid on the company. Private equity firms Blackstone and Carlyle joined with the Canada Pension Plan Investment Board to submit a bid. A third bid came from Advent, Cinven, and the Abu Dhabi Investment Authority.

Also today — in anticipation of the long-rumored and much-discussed sale of ThyssenKrupp’s elevator business — the International Center for Law & Economics released The Antitrust Risks of Four To Three Mergers: Heightened Scrutiny of a Potential ThyssenKrupp/Kone Merger, by Eric Fruits and Geoffrey A. Manne. This study examines the heightened scrutiny of four to three mergers by competition authorities in the current regulatory environment, using a potential ThyssenKrupp/Kone merger as a case study. 

In recent years, regulators have become more aggressive in merger enforcement in response to populist criticisms that lax merger enforcement has led to the rise of anticompetitive “big business.” In this environment, it is easy to imagine regulators intensely scrutinizing and challenging or conditioning nearly any merger that substantially increases concentration. 

This potential deal provides an opportunity to highlight the likely challenges, complexity, and cost that regulatory scrutiny of such mergers actually entails — and it is likely to be a far cry from the lax review and permissive decisionmaking of antitrust critics’ imagining.

In the case of a potential ThyssenKrupp/Kone merger, the combined entity would face lengthy, costly, and duplicative review in multiple jurisdictions, any one of which could effectively block the merger or impose onerous conditions. It would face the automatic assumption of excessive concentration in several of these, including the US, EU, and Canada. In the US, the deal would also face heightened scrutiny based on political considerations, including the perception that the deal would strengthen a foreign firm at the expense of a domestic supplier. It would also face the risk of politicized litigation from state attorneys general, and potentially the threat of extractive litigation by competitors and customers.

Whether the merger would actually entail anticompetitive risk may, unfortunately, be of only secondary importance in determining the likelihood and extent of a merger challenge or the imposition of onerous conditions.

A “highly concentrated” market

In many jurisdictions, the four to three merger would likely trigger a “highly concentrated” market designation. With the merging firms having a dominant share of the market for elevators, the deal would be viewed as problematic in several areas:

  • The US (share > 35%, HHI > 3,000, HHI increase > 700), 
  • Canada (share of approximately 50%, HHI > 2,900, HHI increase of 1,000), 
  • Australia (share > 40%, HHI > 3,100, HHI increase > 500), 
  • Europe (shares of 33–65%, HHIs in excess of 2,700, and HHI increases of 270 or higher in Sweden, Finland, Netherlands, Austria, France, and Luxembourg).

As with most mergers, a potential ThyssenKrupp/Kone merger would likely generate “hot docs” that would be used to support the assumption of anticompetitive harm from the increase in concentration, especially in light of past allegations of price fixing in the industry and a decision by the European Commission in 2007 to fine certain companies in the industry for alleged anticompetitive conduct.

Political risks

The merger would also surely face substantial political risks in the US and elsewhere from the perception the deal would strengthen a foreign firm at the expense of a domestic supplier. President Trump’s administration has demonstrated a keen interest in protecting what it sees as US interests vis-à-vis foreign competition. As a high-rise and hotel developer who has shown a willingness to intervene in antitrust enforcement to protect his interests, President Trump may have a heightened personal interest in a ThyssenKrupp/Kone merger. 

To the extent that US federal, state, and local governments purchase products from the merging parties, the deal would likely be subjected to increased attention from federal antitrust regulators as well as states’ attorneys general. Indeed, the US Department of Justice (DOJ) has created a “Procurement Collusion Strike Force” focused on “deterring, detecting, investigating and prosecuting antitrust crimes . . . which undermine competition in government procurement. . . .”

The deal may also face scrutiny from EC, UK, Canadian, and Australian competition authorities, each of which has exhibited increased willingness to thwart such mergers. For example, the EU recently blocked a proposed merger between the transport (rail) services of EU firms, Siemens and Alstom. The UK recently blocked a series of major deals that had only limited competitive effects on the UK. In one of these, Thermo Fisher Scientific’s proposed acquisition of Roper Technologies’ Gatan subsidiary was not challenged in the US, but the deal was abandoned after the UK CMA decided to block the deal despite its limited connections to the UK.

Economic risks

In addition to the structural and political factors that may lead to blocking a four to three merger, several economic factors may further exacerbate the problem. While these, too, may be wrongly deemed problematic in particular cases by reviewing authorities, they are — relatively at least — better-supported by economic theory in the abstract. Moreover, even where wrongly applied, they are often impossible to refute successfully given the relevant standards. And such alleged economic concerns can act as an effective smokescreen for blocking a merger based on the sorts of political and structural considerations discussed above. Some of these economic factors include:

  • Barriers to entry. IBISWorld identifies barriers to entry to include economies of scale, long-standing relationships with existing buyers, as well as long records of safety and reliability. Strictly speaking, these are not costs borne only by a new entrant, and thus should not be deemed competitively-relevant entry barriers. Yet merger review authorities the world over fail to recognize this distinction, and routinely scuttle mergers based simply on the costs faced by additional competitors entering the market.
  • Potential unilateral effects. The extent of direct competition between the products and services sold by the merging parties is a key part of the evaluation of unilateral price effects. Competition authorities would likely consider a significant range of information to evaluate the extent of direct competition between the products and services sold by ThyssenKrupp and its merger partner. In addition to “hot docs,” this information could include won/lost bid reports as well as evidence from discount approval processes and customer switching patterns. Because the purchase of elevator and escalator products and services involves negotiation by sophisticated and experienced buyers, it is likely that this type of bid information would be readily available for review.
  • A history of coordinated conduct involving ThyssenKrupp and Kone. Competition authorities will also consider the risk that a four to three merger will increase the ability and likelihood for the remaining, smaller number of firms to collude. In 2007 the European Commission imposed a €992 million cartel fine on five elevator firms: ThyssenKrupp, Kone, Schindler, United Technologies, and Mitsubishi. At the time, it was the largest-ever cartel fine. Several companies, including Kone and UTC, admitted wrongdoing.

Conclusion

As “populist” antitrust gains more traction among enforcers aiming to stave off criticisms of lax enforcement, superficial and non-economic concerns have increased salience. The simple benefit of a resounding headline — “The US DOJ challenges increased concentration that would stifle the global construction boom” — signaling enforcers’ efforts to thwart further increases in concentration and save blue collar jobs is likely to be viewed by regulators as substantial. 

Coupled with the arguably more robust, potential economic arguments involving unilateral and coordinated effects arising from such a merger, a four to three merger like a potential ThyssenKrupp/Kone transaction would be sure to attract significant scrutiny and delay. Any arguments that such a deal might actually decrease prices and increase efficiency are — even if valid — less likely to gain as much traction in today’s regulatory environment.

This guest post is by Jonathan M. Barnett, Torrey H. Webb Professor Law, University of Southern California Gould School of Law.

It has become virtual received wisdom that antitrust law has been subdued by economic analysis into a state of chronic underenforcement. Following this line of thinking, many commentators applauded the Antitrust Division’s unsuccessful campaign to oppose the acquisition of Time-Warner by AT&T and some (unsuccessfully) urged the Division to take stronger action against the acquisition of most of Fox by Disney. The arguments in both cases followed a similar “big is bad” logic. Consolidating control of a large portfolio of creative properties (Fox plus Disney) or integrating content production and distribution capacities (Time-Warner plus AT&T) would exacerbate market concentration, leading to reduced competition and some combination of higher prices and reduced product for consumers. 

Less than 18 months after the closing of both transactions, those concerns seem to have been largely unwarranted. 

Far from precipitating any decline in product output or variety, both transactions have been followed by a vigorous burst of competition in the digital streaming market. In place of the Amazon plus Netflix bottleneck (with Hulu trailing behind), consumers now, or in 2020 will, have a choice of at least four new streaming services with original content, Disney+, AT&T’s “HBO Max”, Apple’s “Apple TV+” and Comcast’s NBCUniversal “Peacock” services. Critically, each service relies on a formidable combination of creative, financing and technological capacities that can only be delivered by a firm of sufficiently large size and scale.  As modern antitrust law has long recognized, it turns out that “big” is sometimes not bad.

Where’s the Harm?

At present, it is hard to see any net consumer harm arising from the concurrence of increased size and increased competition. 

On the supply side, this is just the next episode in the ongoing “Golden Age of Television” in which content producers have enjoyed access to exceptional funding to support high-value productions.  It has been reported that Apple TV+’s new “Morning Show” series will cost $15 million per episode while similar estimates are reported for hit shows such as HBO’s “Game of Thrones” and Netflix’s “The Crown.”  Each of those services is locked in a fierce competition to gain and retain sufficient subscribers to earn a return on those investments, which leads directly to the next happy development.

On the demand side, consumers enjoy a proliferating array of streaming services, ranging from free ad-supported services to subscription ad-free services. Consumers can now easily “cut the cord” and assemble a customized bundle of preferred content from multiple services, each of which is less costly than a traditional cable package and can generally be cancelled at any time.  Current market performance does not plausibly conform to the declining output, limited variety or increasing prices that are the telltale symptoms of a less than competitive market.

Real-World v. Theoretical Markets

The market’s favorable trajectory following these two controversial transactions should not be surprising. When scrutinized against the actual characteristics of real-world digital content markets, rather than stylized theoretical models or antiquated pre-digital content markets, the arguments leveled against these transactions never made much sense. There were two fundamental and related errors. 

Error #1: Content is Scarce

Advocates for antitrust intervention assumed that entry barriers into the content market were high, in which case it followed that the owner of an especially valuable creative portfolio could exert pricing power to consumers’ detriment. Yet, in reality, funding for content production is plentiful and even a service that has an especially popular show is unlikely to have sustained pricing power in the face of a continuous flow of high-value productions being released by formidable competitors. The amounts being spent on content in 2019 by leading streaming services are unprecedented, ranging from a reported $15 billion for Netflix to an estimated $6 billion for Amazon and Apple TV+ to an estimated $3.9 billion for AT&T’s HBO Max. It is also important to note that a hit show is often a mobile asset that a streaming or other video distribution service has licensed from independent production companies and other rights holders. Once the existing deal expires, those rights are available for purchase by the highest bidder. For example, in 2019, Netflix purchased the streaming rights to “Seinfeld”, Viacom purchased the cable rights to “Seinfeld”, and HBO Max purchased the streaming rights to “South Park.” Similarly, the producers behind a hit show are always free to take their talents to competitors once any existing agreement terminates.

Error #2: Home Pay-TV is a “Monopoly”

Advocates of antitrust action were looking at the wrong market—or more precisely, the market as it existed about a decade ago. The theory that AT&T’s acquisition of Time-Warner’s creative portfolio would translate into pricing power in the home pay-TV market mighthave been plausible when consumers had no reasonable alternative to the local cable provider. But this argument makes little sense today when consumers are fleeing bulky home pay-TV bundles for cheaper cord-cutting options that deliver more targeted content packages to a mobile device.  In 2019, a “home” pay-TV market is fast becoming an anachronism and hence a home pay-TV “monopoly” largely reduces to a formalism that, with the possible exception of certain live programming, is unlikely to translate into meaningful pricing power. 

Wait a Second! What About the HBO Blackout?

A skeptical reader might reasonably object that this mostly rosy account of the post-merger home video market is unpersuasive since it does not address the ongoing blackout of HBO (now an AT&T property) on the Dish satellite TV service. Post-merger commentary that remains skeptical of the AT&T/Time-Warner merger has focused on this dispute, arguing that it “proves” that the government was right since AT&T is purportedly leveraging its new ownership of HBO to disadvantage one of its competitors in the pay-TV market. This interpretation tends to miss the forest for the trees (or more precisely, a tree).  

The AT&T/Dish dispute over HBO is only one of over 200 “carriage” disputes resulting in blackouts that have occurred this year, which continues an upward trend since approximately 2011. Some of those include Dish’s dispute with Univision (settled in March 2019 after a nine-month blackout) and AT&T’s dispute (as pay-TV provider) with Nexstar (settled in August 2019 after a nearly two-month blackout). These disputes reflect the fact that the flood of subscriber defections from traditional pay-TV to mobile streaming has made it difficult for pay-TV providers to pass on the fees sought by content owners. As a result, some pay-TV providers adopt the negotiating tactic of choosing to drop certain content until the terms improve, just as AT&T, in its capacity as a pay-TV provider, dropped CBS for three weeks in July and August 2019 pending renegotiation of licensing terms. It is the outward shift in the boundaries of the economically relevant market (from home to home-plus-mobile video delivery), rather than market power concerns, that best accounts for periodic breakdowns in licensing negotiations.  This might even be viewed positively from an antitrust perspective since it suggests that the “over the top” market is putting pressure on the fees that content owners can extract from providers in the traditional pay-TV market.

Concluding Thoughts

It is common to argue today that antitrust law has become excessively concerned about “false positives”– that is, the possibility of blocking a transaction or enjoining a practice that would have benefited consumers. Pending future developments, this early post-mortem on the regulatory and judicial treatment of these two landmark media transactions suggests that there are sometimes good reasons to stay the hand of the court or regulator. This is especially the case when a generational market shift is in progress and any regulator’s or judge’s foresight is likely to be guesswork. Antitrust law’s “failure” to stop these transactions may turn out to have been a ringing success.

Wall Street Journal commentator, Greg Ip, reviews Thomas Philippon’s forthcoming book, The Great Reversal: How America Gave Up On Free Markets. Ip describes a “growing mountain” of research on industry concentration in the U.S. and reports that Philippon concludes competition has declined over time, harming U.S. consumers.

In one example, Philippon points to air travel. He notes that concentration in the U.S. has increased rapidly—spiking since the Great Recession—while concentration in the EU has increased modestly. At the same time, Ip reports “U.S. airlines are now far more profitable than their European counterparts.” (Although it’s debatable whether a five percentage point difference in net profit margin is “far more profitable”). 

On first impression, the figures fit nicely with the populist antitrust narrative: As concentration in the U.S. grew, so did profit margins. Closer inspection raises some questions, however. 

For example, the U.S. airline industry had a negative net profit margin in each of the years prior to the spike in concentration. While negative profits may be good for consumers, it would be a stretch to argue that long-run losses are good for competition as a whole. At some point one or more of the money losing firms is going to pull the ripcord. Which raises the issue of causation.

Just looking at the figures from the WSJ article, one could argue that rather than concentration driving profit margins, instead profit margins are driving concentration. Indeed, textbook IO economics would indicate that in the face of losses, firms will exit until economic profit equals zero. Paraphrasing Alfred Marshall, “Which blade of the scissors is doing the cutting?”

While the concentration and profits story fits the antitrust populist narrative, other observations run contrary to Philippon’s conclusion. For example, airline prices, as measured by price indexes, show that changes in U.S. and EU airline prices have fairly closely tracked each other until 2014, when U.S. prices began dropping. Sure, airlines have instituted baggage fees, but the CPI includes taxes, fuel surcharges, airport, security, and baggage fees. It’s not obvious that U.S. consumers are worse off in the so-called era of rising concentration.

Regressing U.S. air fare price index against Philippon’s concentration information in the figure above (and controlling for general inflation) finds that if U.S. concentration in 2015 was the same as in 1995, U.S. airfares would be about 2.8% lower. That a 1,250 point increase in HHI would be associated with a 2.8% increase in prices indicates that the increased concentration in U.S. airlines has led to no significant increase in consumer prices.

Also, if consumers are truly worse off, one would expect to see a drop off or slow down in the use of air travel. An eyeballing of passenger data does not fit the populist narrative. Instead, we see airlines are carrying more passengers and consumers are paying lower prices on average.

While it’s true that low-cost airlines have shaken up air travel in the EU, the differences are not solely explained by differences in market concentration. For example, U.S. regulations prohibit foreign airlines from operating domestic flights while EU carriers compete against operators from other parts of Europe. While the WSJ’s figures tell an interesting story of concentration, prices, and profits, they do not provide a compelling case of anticompetitive conduct.

A spate of recent newspaper investigations and commentary have focused on Apple allegedly discriminating against rivals in the App Store. The underlying assumption is that Apple, as a vertically integrated entity that operates both a platform for third-party apps and also makes it own apps, is acting nefariously whenever it “discriminates” against rival apps through prioritization, enters into popular app markets, or charges a “tax” or “surcharge” on rival apps. 

For most people, the word discrimination has a pejorative connotation of animus based upon prejudice: racism, sexism, homophobia. One of the definitions you will find in the dictionary reflects this. But another definition is a lot less charged: the act of making or perceiving a difference. (This is what people mean when they say that a person has a discriminating palate, or a discriminating taste in music, for example.)

In economics, discrimination can be a positive attribute. For instance, effective price discrimination can result in wealthier consumers paying a higher price than less well off consumers for the same product or service, and it can ensure that products and services are in fact available for less-wealthy consumers in the first place. That would seem to be a socially desirable outcome (although under some circumstances, perfect price discrimination can be socially undesirable). 

Antitrust law rightly condemns conduct only when it harms competition and not simply when it harms a competitor. This is because it is competition that enhances consumer welfare, not the presence or absence of a competitor — or, indeed, the profitability of competitors. The difficult task for antitrust enforcers is to determine when a vertically integrated firm with “market power” in an upstream market is able to effectively discriminate against rivals in a downstream market in a way that harms consumers

Even assuming the claims of critics are true, alleged discrimination by Apple against competitor apps in the App Store may harm those competitors, but it doesn’t necessarily harm either competition or consumer welfare.

The three potential antitrust issues facing Apple can be summarized as:

There is nothing new here economically. All three issues are analogous to claims against other tech companies. But, as I detail below, the evidence to establish any of these claims at best represents harm to competitors, and fails to establish any harm to the competitive process or to consumer welfare.

Prioritization

Antitrust enforcers have rejected similar prioritization claims against Google. For instance, rivals like Microsoft and Yelp have funded attacks against Google, arguing the search engine is harming competition by prioritizing its own services in its product search results over competitors. As ICLE and affiliated scholars have pointed out, though, there is nothing inherently harmful to consumers about such prioritization. There are also numerous benefits in platforms directly answering queries, even if it ends up directing users to platform-owned products or services.

As Geoffrey Manne has observed:

there is good reason to believe that Google’s decision to favor its own content over that of other sites is procompetitive. Beyond determining and ensuring relevance, Google surely has the prerogative to vigorously compete and to decide how to design its products to keep up with a changing market. In this case, that means designing, developing, and offering its own content to partially displace the original “ten blue links” design of its search results page and offer its own answers to users’ queries in its stead. 

Here, the antitrust case against Apple for prioritization is similarly flawed. For example, as noted in a recent article in the WSJ, users often use the App Store search in order to find apps they already have installed:

“Apple customers have a very strong connection to our products and many of them use search as a way to find and open their apps,” Apple said in a statement. “This customer usage is the reason Apple has strong rankings in search, and it’s the same reason Uber, Microsoft and so many others often have high rankings as well.” 

If a substantial portion of searches within the App Store are for apps already on the iPhone, then showing the Apple app near the top of the search results could easily be consumer welfare-enhancing. 

Apple is also theoretically leaving money on the table by prioritizing its (already pre-loaded) apps over third party apps. If its algorithm promotes its own apps over those that may earn it a 30% fee — additional revenue — the prioritization couldn’t plausibly be characterized as a “benefit” to Apple. Apple is ultimately in the business of selling hardware. Losing customers of the iPhone or iPad by prioritizing apps consumers want less would not be a winning business strategy.

Further, it stands to reason that those who use an iPhone may have a preference for Apple apps. Such consumers would be naturally better served by seeing Apple’s apps prioritized over third-party developer apps. And if consumers do not prefer Apple’s apps, rival apps are merely seconds of scrolling away.

Moreover, all of the above assumes that Apple is engaging in sufficiently pervasive discrimination through prioritzation to have a major impact on the app ecosystem. But substantial evidence exists that the universe of searches for which Apple’s algorithm prioritizes Apple apps is small. For instance, most searches are for branded apps already known by the searcher:

Keywords: how many are brands?

  • Top 500: 58.4%
  • Top 400: 60.75%
  • Top 300: 68.33%
  • Top 200: 80.5%
  • Top 100: 86%
  • Top 50: 90%
  • Top 25: 92%
  • Top 10: 100%

This is corroborated by data from the NYT’s own study, which suggests Apple prioritized its own apps first in only roughly 1% of the overall keywords queried: 

Whatever the precise extent of increase in prioritization, it seems like any claims of harm are undermined by the reality that almost 99% of App Store results don’t list Apple apps first. 

The fact is, very few keyword searches are even allegedly affected by prioritization. And the algorithm is often adjusting to searches for apps already pre-loaded on the device. Under these circumstances, it is very difficult to conclude consumers are being harmed by prioritization in search results of the App Store.

Entry

The issue of Apple building apps to compete with popular apps in its marketplace is similar to complaints about Amazon creating its own brands to compete with what is sold by third parties on its platform. For instance, as reported multiple times in the Washington Post:

Clue, a popular app that women use to track their periods, recently rocketed to the top of the App Store charts. But the app’s future is now in jeopardy as Apple incorporates period and fertility tracking features into its own free Health app, which comes preinstalled on every device. Clue makes money by selling subscriptions and services in its free app. 

However, there is nothing inherently anticompetitive about retailers selling their own brands. If anything, entry into the market is normally procompetitive. As Randy Picker recently noted with respect to similar claims against Amazon: 

The heart of this dynamic isn’t new. Sears started its catalogue business in 1888 and then started using the Craftsman and Kenmore brands as in-house brands in 1927. Sears was acquiring inventory from third parties and obviously knew exactly which ones were selling well and presumably made decisions about which markets to enter and which to stay out of based on that information. Walmart, the nation’s largest retailer, has a number of well-known private brands and firms negotiating with Walmart know full well that Walmart can enter their markets, subject of course to otherwise applicable restraints on entry such as intellectual property laws… I think that is possible to tease out advantages that a platform has regarding inventory experimentation. It can outsource some of those costs to third parties, though sophisticated third parties should understand where they can and cannot have a sustainable advantage given Amazon’s ability to move to build-or-bought first-party inventory. We have entire bodies of law— copyright, patent, trademark and more—that limit the ability of competitors to appropriate works, inventions and symbols. Those legal systems draw very carefully considered lines regarding permitted and forbidden uses. And antitrust law generally favors entry into markets and doesn’t look to create barriers that block firms, large or small, from entering new markets.

If anything, Apple is in an even better position than Amazon. Apple invests revenue in app development, not because the apps themselves generate revenue, but because it wants people to use the hardware, i.e. the iPhones, iPads, and Apple Watches. The reason Apple created an App Store in the first place is because this allows Apple to make more money from selling devices. In order to promote security on those devices, Apple institutes rules for the App Store, but it ultimately decides whether to create its own apps and provide access to other apps based upon its desire to maximize the value of the device. If Apple chooses to create free apps in order to improve iOS for users and sell more hardware, it is not a harm to competition.

Apple’s ability to enter into popular app markets should not be constrained unless it can be shown that by giving consumers another choice, consumers are harmed. As noted above, most searches in the App Store are for branded apps to begin with. If consumers already know what they want in an app, it hardly seems harmful for Apple to offer — and promote — its own, additional version as well. 

In the case of Clue, if Apple creates a free health app, it may hurt sales for Clue. But it doesn’t hurt consumers who want the functionality and would prefer to get it from Apple for free. This sort of product evolution is not harming competition, but enhancing it. And, it must be noted, Apple doesn’t exclude Clue from its devices. If, indeed, Clue offers a better product, or one that some users prefer, they remain able to find it and use it.

The so-called App Store “Tax”

The argument that Apple has an unfair competitive advantage over rival apps which have to pay commissions to Apple to be on the App Store (a “tax” or “surcharge”) has similarly produced no evidence of harm to consumers. 

Apple invested a lot into building the iPhone and the App Store. This infrastructure has created an incredibly lucrative marketplace for app developers to exploit. And, lest we forget a point fundamental to our legal system, Apple’s App Store is its property

The WSJ and NYT stories give the impression that Apple uses its commissions on third party apps to reduce competition for its own apps. However, this is inconsistent with how Apple charges its commission

For instance, Apple doesn’t charge commissions on free apps, which make up 84% of the App Store. Apple also doesn’t charge commissions for apps that are free to download but are supported by advertising — including hugely popular apps like Yelp, Buzzfeed, Instagram, Pinterest, Twitter, and Facebook. Even apps which are “readers” where users purchase or subscribe to content outside the app but use the app to access that content are not subject to commissions, like Spotify, Netflix, Amazon Kindle, and Audible. Apps for “physical goods and services” — like Amazon, Airbnb, Lyft, Target, and Uber — are also free to download and are not subject to commissions. The class of apps which are subject to a 30% commission include:

  • paid apps (like many games),
  • free apps that then have in-app purchases (other games and services like Skype and TikTok), 
  • and free apps with digital subscriptions (Pandora, Hulu, which have 30% commission first year and then 15% in subsequent years), and
  • cross-platform apps (Dropbox, Hulu, and Minecraft) which allow for digital goods and services to be purchased in-app and Apple collects commission on in-app sales, but not sales from other platforms. 

Despite protestations to the contrary, these costs are hardly unreasonable: third party apps receive the benefit not only of being in Apple’s App Store (without which they wouldn’t have any opportunity to earn revenue from sales on Apple’s platform), but also of the features and other investments Apple continues to pour into its platform — investments that make the ecosystem better for consumers and app developers alike. There is enormous value to the platform Apple has invested in, and a great deal of it is willingly shared with developers and consumers.  It does not make it anticompetitive to ask those who use the platform to pay for it. 

In fact, these benefits are probably even more important for smaller developers rather than bigger ones who can invest in the necessary back end to reach consumers without the App Store, like Netflix, Spotify, and Amazon Kindle. For apps without brand reputation (and giant marketing budgets), the ability for consumers to trust that downloading the app will not lead to the installation of malware (as often occurs when downloading from the web) is surely essential to small developers’ ability to compete. The App Store offers this.

Despite the claims made in Spotify’s complaint against Apple, Apple doesn’t have a duty to deal with app developers. Indeed, Apple could theoretically fill the App Store with only apps that it developed itself, like Apple Music. Instead, Apple has opted for a platform business model, which entails the creation of a new outlet for others’ innovation and offerings. This is pro-consumer in that it created an entire marketplace that consumers probably didn’t even know they wanted — and certainly had no means to obtain — until it existed. Spotify, which out-competed iTunes to the point that Apple had to go back to the drawing board and create Apple Music, cannot realistically complain that Apple’s entry into music streaming is harmful to competition. Rather, it is precisely what vigorous competition looks like: the creation of more product innovation, lower prices, and arguably (at least for some) higher quality.

Interestingly, Spotify is not even subject to the App Store commission. Instead, Spotify offers a work-around to iPhone users to obtain its premium version without ads on iOS. What Spotify actually desires is the ability to sell premium subscriptions to Apple device users without paying anything above the de minimis up-front cost to Apple for the creation and maintenance of the App Store. It is unclear how many potential Spotify users are affected by the inability to directly buy the ad-free version since Spotify discontinued offering it within the App Store. But, whatever the potential harm to Spotify itself, there’s little reason to think consumers or competition bear any of it. 

Conclusion

There is no evidence that Apple’s alleged “discrimination” against rival apps harms consumers. Indeed, the opposite would seem to be the case. The regulatory discrimination against successful tech platforms like Apple and the App Store is far more harmful to consumers.

Source: New York Magazine

When she rolled out her plan to break up Big Tech, Elizabeth Warren paid for ads (like the one shown above) claiming that “Facebook and Google account for 70% of all internet traffic.” This statistic has since been repeated in various forms by Rolling Stone, Vox, National Review, and Washingtonian. In my last post, I fact checked this claim and found it wanting.

Warren’s data

As supporting evidence, Warren cited a Newsweek article from 2017, which in turn cited a blog post from an open-source freelancer, who was aggregating data from a 2015 blog post published by Parse.ly, a web analytics company, which said: “Today, Facebook remains a top referring site to the publishers in Parse.ly’s network, claiming 39 percent of referral traffic versus Google’s share of 34 percent.” At the time, Parse.ly had “around 400 publisher domains” in its network. To put it lightly, this is not what it means to “account for” or “control” or “directly influence” 70 percent of all internet traffic, as Warren and others have claimed.

Internet traffic measured in bytes

In an effort to contextualize how extreme Warren’s claim was, in my last post I used a common measure of internet traffic — total volume in bytes — to show that Google and Facebook account for less than 20 percent of global internet traffic. Some Warren defenders have correctly pointed out that measuring internet traffic in bytes will weight the results toward data-heavy services, such as video streaming. It’s not obvious a priori, however, whether this would bias the results in favor of Facebook and Google or against them, given that users stream lots of video using those companies’ sites and apps (hello, YouTube).

Internet traffic measured by time spent by users

As I said in my post, there are multiple ways to measure total internet traffic, and no one of them is likely to offer a perfect measure. So, to get a fuller picture, we could also look at how users are spending their time on the internet. While there is no single source for global internet time use statistics, we can combine a few to reach an estimate (NB: this analysis includes time spent in apps as well as on the web). 

According to the Global Digital report by Hootsuite and We Are Social, in 2018 there were 4.021 billion active internet users, and the worldwide average for time spent using the internet was 6 hours and 42 minutes per day. That means there were 1,616 billion internet user-minutes per day.

Data from Apptopia shows that, in the three months from May through July 2018, users spent 300 billion hours in Facebook-owned apps and 118 billion hours in Google-owned apps. In other words, all Facebook-owned apps consume, on average, 197 billion user-minutes per day and all Google-owned apps consume, on average, 78 billion user-minutes per day. And according to SimilarWeb data for the three months from June to August 2019, web users spent 11 billion user-minutes per day visiting Facebook domains (facebook.com, whatsapp.com, instagram.com, messenger.com) and 52 billion user-minutes per day visiting Google domains, including google.com (and all subdomains) and youtube.com.

If you add up all app and web user-minutes for Google and Facebook, the total is 338 billion user minutes per day. A staggering number. But as a share of all internet traffic (in this case measured in terms of time spent)? Google- and Facebook-owned sites and apps account for about 21 percent of user-minutes.

Internet traffic measured by “connections”

In my last post, I cited a Sandvine study that measured total internet traffic by volume of upstream and downstream bytes. The same report also includes numbers for what Sandvine calls “connections,” which is defined as “the number of conversations occurring for an application.” Sandvine notes that while “some applications use a single connection for all traffic, others use many connections to transfer data or video to the end user.” For example, a video stream on Netflix uses a single connection, while every item on a webpage, such as loading images, may require a distinct connection.

Cam Cullen, Sandvine’s VP of marketing, also implored readers to “never forget Google connections include YouTube, Search, and DoubleClick — all of which are very noisy applications and universally consumed,” which would bias this statistic toward inflating Google’s share. With these caveats in mind, Sandvine’s data shows that Google is responsible for 30 percent of these connections, while Facebook is responsible for under 8 percent of connections. Note that Netflix’s share is less than 1 percent, which implies this statistic is not biased toward data-heavy services. Again, the numbers for Google and Facebook are a far cry from what Warren and others are claiming.

Source: Sandvine

Internet traffic measured by sources

I’m not sure whether either of these measures is preferable to what I offered in my original post, but each is at least a plausible measure of internet traffic — and all of them fall well short of Waren’s claimed 70 percent. What I do know is that the preferred metric offered by the people most critical of my post — external referrals to online publishers (content sites) — is decidedly not a plausible measure of internet traffic.

In defense of Warren, Jason Kint, the CEO of a trade association for digital content publishers, wrote, “I just checked actual benchmark data across our members (most publishers) and 67% of their external traffic comes through Google or Facebook.” Rand Fishkin cites his own analysis of data from Jumpshot showing that 66.0 percent of external referral visits were sent by Google and 5.1 percent were sent by Facebook.

In another response to my piece, former digital advertising executive, Dina Srinivasan, said, “[Percentage] of referrals is relevant because it is pointing out that two companies control a large [percentage] of business that comes through their door.” 

In my opinion, equating “external referrals to publishers” with “internet traffic” is unacceptable for at least two reasons.

First, the internet is much broader than traditional content publishers — it encompasses everything from email and Yelp to TikTok, Amazon, and Netflix. The relevant market is consumer attention and, in that sense, every internet supplier is bidding for scarce time. In a recent investor letter, Netflix said, “We compete with (and lose to) ‘Fortnite’ more than HBO,” adding: “There are thousands of competitors in this highly fragmented market vying to entertain consumers and low barriers to entry for those great experiences.” Previously, CEO Reed Hastings had only half-jokingly said, “We’re competing with sleep on the margin.” In this debate over internet traffic, the opposing side fails to grasp the scope of the internet market. It is unsuprising, then, that the one metric that does best at capturing attention — time spent — is about the same as bytes.

Second, and perhaps more important, even if we limit our analysis to publisher traffic, the external referral statistic these critics cite completely (and conveniently?) omits direct and internal traffic — traffic that represents the majority of publisher traffic. In fact, according to Parse.ly’s most recent data, which now includes more than 3,000 “high-traffic sites,” only 35 percent of total traffic comes from search and social referrers (as the graph below shows). Of course, Google and Facebook drive the majority of search and social referrals. But given that most users visit webpages without being referred at all, Google and Facebook are responsible for less than a third of total traffic

Source: Parse.ly

It is simply incorrect to say, as Srinivasan does, that external referrals offers a useful measurement of internet traffic because it captures a “large [percentage] of business that comes through [publishers’] door.” Well, “large” is relative, but the implication that these external referrals from Facebook and Google explain Warren’s 70%-of-internet-traffic claim is both factually incorrect and horribly misleading — especially in an antitrust context. 

It is factually incorrect because, at most, Google and Facebook are responsible for a third of the traffic on these sites; it is misleading because if our concern is ensuring that users can reach content sites without passing through Google or Facebook, the evidence is clear that they can and do — at least twice as often as they follow links from Google or Facebook to do so.

Conclusion

As my colleague Gus Hurwitz said, Warren is making a very specific and very alarming claim: 

There may be ‘softer’ versions of [Warren’s claim] that are reasonably correct (e.g., digital ad revenue, visibility into traffic). But for 99% of people hearing (and reporting on) these claims, they hear the hard version of the claim: Google and Facebook control 70% of what you do online. That claim is wrong, alarmist, misinformation, intended to foment fear, uncertainty, and doubt — to bootstrap the argument that ‘everything is terrible, worse, really!, and I’m here to save you.’ This is classic propaganda.

Google and Facebook do account for a 59 percent (and declining) share of US digital advertising. But that’s not what Warren said (nor would anyone try to claim with a straight face that “volume of advertising” was the same thing as “internet traffic”). And if our concern is with competition, it’s hard to look at the advertising market and conclude that it’s got a competition problem. Prices are falling like crazy (down 42 percent in the last decade), and volume is only increasing. If you add in offline advertising (which, whatever you think about market definition here, certainly competes with online advertising at the very least on some dimensions) Google and Facebook are responsible for only about 32 percent.

In her comments criticizing my article, Dina Srinivasan mentioned another of these “softer” versions:

Also, each time a publisher page loads, what [percentage] then queries Google or Facebook servers during the page loads? About 98+% of every page load. That stat is not even in Warren or your analysis. That is 1000% relevant.

It’s true that Google and Facebook have visibility into a great deal of all internet traffic (beyond their own) through a variety of products and services: browsers, content delivery networks (CDNs), web beacons, cloud computing, VPNs, data brokers, single sign-on (SSO), and web analytics services. But seeing internet traffic is not the same thing as “account[ing] for” — or controlling or even directly influencing — internet traffic. The first is a very different claim than the latter, and one with considerably more attenuated competitive relevance (if any). It certainly wouldn’t be a sufficient basis for advocating that Google and Facebook be broken up — which is probably why, although arguably accurate, it’s not the statistic upon which Warren based her proposal to do so.

In the Federal Trade Commission’s recent hearings on competition policy in the 21st century, Georgetown professor Steven Salop urged greater scrutiny of vertical mergers. He argued that regulators should be skeptical of the claim that vertical integration tends to produce efficiencies that can enhance consumer welfare. In his presentation to the FTC, Professor Salop provided what he viewed as exceptions to this long-held theory.

Also, vertical merger efficiencies are not inevitable. I mean, vertical integration is common, but so is vertical non-integration. There is an awful lot of companies that are not vertically integrated. And we have lots of examples in which vertical integration has failed. Pepsi’s acquisition of KFC and Pizza Hut; you know, of course Coca-Cola has not merged with McDonald’s . . . .

Aside from the logical fallacy of cherry picking examples (he also includes Betamax/VHS and the split up of Alcoa and Arconic, as well as “integration and disintegration” “in cable”), Professor Salop misses the fact that PepsiCo’s 20 year venture into restaurants had very little to do with vertical integration.

Popular folklore says PepsiCo got into fast food because it was looking for a way to lock up sales of its fountain sodas. Soda is considered one of the highest margin products sold by restaurants. Vertical integration by a soda manufacturer into restaurants would eliminate double marginalization with the vertically integrated firm reaping most of the gains. The folklore fits nicely with economic theory. But, the facts may not fit the theory.

PepsiCo acquired Pizza Hut in 1977, Taco Bell in 1978, and Kentucky Fried Chicken in 1986. Prior to PepsiCo’s purchase, KFC had been owned by spirits company Heublein and conglomerate RJR Nabisco. This was the period of conglomerates—Pillsbury owned Burger King and General Foods owned Burger Chef (or maybe they were vertically integrated into bun distribution).

In the early 1990s Pepsi also bought California Pizza Kitchen, Chevys Fresh Mex, and D’Angelo Grilled Sandwiches.

In 1997, PepsiCo exited the restaurant business. It spun off Pizza Hut, Taco Bell, and KFC to Tricon Global Restaurants, which would later be renamed Yum! Brands. CPK and Chevy’s were purchased by private equity investors. D’Angelo was sold to Papa Gino’s Holdings, a restaurant chain. Since then, both Chevy’s and Papa Gino’s have filed for bankruptcy and Chevy’s has had some major shake-ups.

Professor Salop’s story focuses on the spin-off as an example of the failure of vertical mergers. But there is also a story of success. PepsiCo was in the restaurant business for two decades. More importantly, it continued its restaurant acquisitions over time. If PepsiCo’s restaurants strategy was a failure, it seems odd that the company would continue acquisitions into the early 1990s.

It’s easy, and largely correct, to conclude that PepsiCo’s restaurant acquisitions involved some degree of vertical integration, with upstream PepsiCo selling beverages to downstream restaurants. At the time PepsiCo bought Kentucky Fried Chicken, the New York Times reported KFC was Coke’s second-largest fountain account, behind McDonald’s.

But, what if vertical efficiencies were not the primary reason for the acquisitions?

Growth in U.S. carbonated beverage sales began slowing in the 1970s. It was also the “decade of the fast-food business.” From 1971 to 1977, Pizza Hut’s profits grew an average of 40% per year. Colonel Sanders sold his ownership in KFC for $2 million in 1964. Seven years later, the company was sold to Heublein for $280 million; PepsiCo paid $850 million in 1986.

Although KFC was Coke’s second largest customer at the time, about 20% of KFC’s stores served Pepsi products, “PepsiCo stressed that the major reason for the acquisition was to expand its restaurant business, which last year accounted for 26 percent of its revenues of $8.1 billion,” according to the New York Times.

Viewed in this light, portfolio diversification goes a much longer way toward explaining PepsiCo’s restaurant purchases than hoped-for vertical efficiencies. In 1997, former PepsiCo chairman Roger Enrico explained to investment analysts that the company entered the restaurant business in the first place, “because it didn’t see future growth in its soft drink and snack” businesses and thought diversification into restaurants would provide expansion opportunities.

Prior to its Pizza Hut and Taco Bell acquisitions, PepsiCo owned companies as diverse as Frito-Lay, North American Van Lines, Wilson Sporting Goods, and Rheingold Brewery. This further supports a diversification theory rather than a vertical integration theory of PepsiCo’s restaurant purchases. 

The mid 1990s and early 2000s were tough times for restaurants. Consumers were demanding healthier foods and fast foods were considered the worst of the worst. This was when Kentucky Fried Chicken rebranded as KFC. Debt hangovers from the leveraged buyout era added financial pressure. Many restaurant groups were filing for bankruptcy and competition intensified among fast food companies. PepsiCo’s restaurants could not cover their cost of capital, and what was once a profitable diversification strategy became a financial albatross, so the restaurants were spun off.

Thus, it seems more reasonable to conclude PepsiCo’s exit from restaurants was driven more by market exigencies than by a failure to achieve vertical efficiencies. While the folklore of locking up distribution channels to eliminate double marginalization fits nicely with theory, the facts suggest a more mundane model of a firm scrambling to deliver shareholder wealth through diversification in the face of changing competition.

These days, lacking a coherent legal theory presents no challenge to the would-be antitrust crusader. In a previous post, we noted how Shaoul Sussman’s predatory pricing claims against Amazon lacked a serious legal foundation. Sussman has returned with a new post, trying to build out his fledgling theory, but fares little better under even casual scrutiny.

According to Sussman, Amazon’s allegedly anticompetitive 

conduct not only cemented its role as the primary destination for consumers that shop online but also helped it solidify its power over brands.

Further, the company 

was willing to go to great lengths to ensure brand availability and inventory, including turning to the grey market, recruiting unauthorized sellers, and even selling diverted goods and counterfeits to its customers.

Sussman is trying to make out a fairly convoluted predatory pricing case, but once again without ever truly connecting the dots in a way that develops a cognizable antitrust claim. According to Sussman: 

Amazon sold products as a first-party to consumers on its platform at below average variable cost and [] Amazon recently began to recoup its losses by shifting the bulk of the transactions that occur on the website to its marketplace, where millions of third-party sellers pay hefty fees that enable Amazon to take a deep cut of every transaction.

Sussman now bases this claim on an allegation that Amazon relied on  “grey market” sellers on its platform, the presence of which forces legitimate brands onto the Amazon Marketplace. Moreover, Sussman claims that — somehow — these brands coming on board on Amazon’s terms forces those brands raise prices elsewhere, and the net effect of this process at scale is that prices across the economy have risen. 

As we detail below, Sussman’s chimerical argument depends on conflating unrelated concepts and relies on non-public anecdotal accounts to piece together an argument that, even if you squint at it, doesn’t make out a viable theory of harm.

Conflating legal reselling and illegal counterfeit selling as the “grey market”

The biggest problem with Sussman’s new theory is that he conflates pro-consumer unauthorized reselling and anti-consumer illegal counterfeiting, erroneously labeling both the “grey market”: 

Amazon had an ace up its sleeve. My sources indicate that the company deliberately turned to and empowered the “grey market“ — where both genuine, authentic goods and knockoffs are purchased and resold outside of brands’ intended distribution pipes — to dominate certain brands.

By definition, grey market goods are — as the link provided by Sussman states — “goods sold outside the authorized distribution channels by entities which may have no relationship with the producer of the goods.” Yet Sussman suggests this also encompasses counterfeit goods. This conflation is no minor problem for his argument. In general, the grey market is legal and beneficial for consumers. Brands such as Nike may try to limit the distribution of their products to channels the company controls, but they cannot legally prevent third parties from purchasing Nike products and reselling them on Amazon (or anywhere else).

This legal activity can increase consumer choice and can lead to lower prices, even though Sussman’s framing omits these key possibilities:

In the course of my conversations with former Amazon employees, some reported that Amazon actively sought out and recruited unauthorized sellers as both third-party sellers and first-party suppliers. Being unauthorized, these sellers were not bound by the brands’ policies and therefore outside the scope of their supervision.

In other words, Amazon actively courted third-party sellers who could bring legitimate goods, priced competitively, onto its platform. Perhaps this gives Amazon “leverage” over brands that would otherwise like to control the activities of legal resellers, but it’s exceedingly strange to try to frame this as nefarious or anticompetitive behavior.

Of course, we shouldn’t ignore the fact that there are also potential consumer gains when Amazon tries to restrict grey market activity by partnering with brands. But it is up to Amazon and the brands to determine through a contracting process when it makes the most sense to partner and control the grey market, or when consumers are better served by allowing unauthorized resellers. The point is: there is simply no reason to assume that either of these approaches is inherently problematic. 

Yet, even when Amazon tries to restrict its platform to authorized resellers, it exposes itself to a whole different set of complaints. In 2018, the company made a deal with Apple to bring the iPhone maker onto its marketplace platform. In exchange for Apple selling its products directly on Amazon, the latter agreed to remove unauthorized Apple resellers from the platform. Sussman portrays this as a welcome development in line with the policy changes he recommends. 

But news reports last month indicate the FTC is reviewing this deal for potential antitrust violations. One is reminded of Ronald Coase’s famous lament that he “had gotten tired of antitrust because when the prices went up the judges said it was monopoly, when the prices went down they said it was predatory pricing, and when they stayed the same they said it was tacit collusion.” It seems the same is true for Amazon and its relationship with the grey market.

Amazon’s incentive to remove counterfeits

What is illegal — and explicitly against Amazon’s marketplace rules  — is selling counterfeit goods. Counterfeit goods destroy consumer trust in the Amazon ecosystem, which is why the company actively polices its listings for abuses. And as Sussman himself notes, when there is an illegal counterfeit listing, “Brands can then file a trademark infringement lawsuit against the unauthorized seller in order to force Amazon to suspend it.”

Sussman’s attempt to hang counterfeiting problems around Amazon’s neck belies the actual truth about counterfeiting: probably the most cost-effective way to stop counterfeiting is simply to prohibit all third-party sellers. Yet, a serious cost-benefit analysis of Amazon’s platforms could hardly support such an action (and would harm the small sellers that antitrust activists seem most concerned about).

But, more to the point, if Amazon’s strategy is to encourage piracy, it’s doing a terrible job. It engages in litigation against known pirates, and earlier this year it rolled out a suite of tools (called Project Zero) meant to help brand owners report and remove known counterfeits. As part of this program, according to Amazon, “brands provide key data points about themselves (e.g., trademarks, logos, etc.) and we scan over 5 billion daily listing update attempts, looking for suspected counterfeits.” And when a brand identifies a counterfeit listing, they can remove it using a self-service tool (without needing approval from Amazon). 

Any large platform that tries to make it easy for independent retailers to reach customers is going to run into a counterfeit problem eventually. In his rush to discover some theory of predatory pricing to stick on Amazon, Sussman ignores the tradeoffs implicit in running a large platform that essentially democratizes retail:

Indeed, the democratizing effect of online platforms (and of technology writ large) should not be underestimated. While many are quick to disparage Amazon’s effect on local communities, these arguments fail to recognize that by reducing the costs associated with physical distance between sellers and consumers, e-commerce enables even the smallest merchant on Main Street, and the entrepreneur in her garage, to compete in the global marketplace.

In short, Amazon Marketplace is designed to make it as easy as possible for anyone to sell their products to Amazon customers. As the WSJ reported

Counterfeiters, though, have been able to exploit Amazon’s drive to increase the site’s selection and offer lower prices. The company has made the process to list products on its website simple—sellers can register with little more than a business name, email and address, phone number, credit card, ID and bank account—but that also has allowed impostors to create ersatz versions of hot-selling items, according to small brands and seller consultants.

The existence of counterfeits is a direct result of policies designed to lower prices and increase consumer choice. Thus, we would expect some number of counterfeits to exist as a result of running a relatively open platform. The question is not whether counterfeits exist, but — at least in terms of Sussman’s attempt to use antitrust law — whether there is any reason to think that Amazon’s conduct with respect to counterfeits is actually anticompetitive. But, even if we assume for the moment that there is some plausible way to draw a competition claim out of the existence of counterfeit goods on the platform, his theory still falls apart. 

There is both theoretical and empirical evidence for why Amazon is likely not engaged in the conduct Sussman describes. As a platform owner involved in a repeated game with customers, sellers, and developers, Amazon has an incentive to increase trust within the ecosystem. Counterfeit goods directly destroy that trust and likely decrease sales in the long run. If individuals can’t depend on the quality of goods on Amazon, they can easily defect to Walmart, eBay, or any number of smaller independent sellers. That’s why Amazon enters into agreements with companies like Apple to ensure there are only legitimate products offered. That’s also why Amazon actively sues counterfeiters in partnership with its sellers and brands, and also why Project Zero is a priority for the company.

Sussman relies on private, anecdotal claims while engaging in speculation that is entirely unsupported by public data 

Much of Sussman’s evidence is “[b]ased on conversations [he] held with former employees, sellers, and brands following the publication of [his] paper”, which — to put it mildly — makes it difficult for anyone to take seriously, let alone address head on. Here’s one example:

One third-party seller, who asked to remain anonymous, was willing to turn over his books for inspection in order to illustrate the magnitude of the increase in consumer prices. Together, we analyzed a single product, of which tens of thousands of units have been sold since 2015. The minimum advertised price for this single product, at any and all outlets, has increased more than 30 percent in the past four years. Despite this fact, this seller’s margins on this product are tighter than ever due to Amazon’s fee increases.

Needless to say, sales data showing the minimum advertised price for a single product “has increased more than 30 percent in the past four years” is not sufficient to prove, well, anything. At minimum, showing an increase in prices above costs would require data from a large and representative sample of sellers. All we have to go on from the article is a vague anecdote representing — maybe — one data point.

Not only is Sussman’s own data impossible to evaluate, but he bases his allegations on speculation that is demonstrably false. For instance, he asserts that Amazon used its leverage over brands in a way that caused retail prices to rise throughout the economy. But his starting point assumption is flatly contradicted by reality: 

To remedy this, Amazon once again exploited brands’ MAP policies. As mentioned, MAP policies effectively dictate the minimum advertised price of a given product across the entire retail industry. Traditionally, this meant that the price of a typical product in a brick and mortar store would be lower than the price online, where consumers are charged an additional shipping fee at checkout.

Sussman presents no evidence for the claim that “the price of a typical product in a brick and mortar store would be lower than the price online.” The widespread phenomenon of showrooming — when a customer examines a product at a brick-and-mortar store but then buys it for a lower price online — belies the notion that prices are higher online. One recent study by Nielsen found that “nearly 75% of grocery shoppers have used a physical store to ‘showroom’ before purchasing online.”

In fact, the company’s downward pressure on prices is so large that researchers now speculate that Amazon and other internet retailers are partially responsible for the low and stagnant inflation in the US over the last decade (dubbing this the “Amazon effect”). It is also curious that Sussman cites shipping fees as the reason prices are higher online while ignoring all the overhead costs of running a brick-and-mortar store which online retailers don’t incur. The assumption that prices are lower in brick-and-mortar stores doesn’t pass the laugh test.

Conclusion

Sussman can keep trying to tell a predatory pricing story about Amazon, but the more convoluted his theories get — and the less based in empirical reality they are — the less convincing they become. There is a predatory pricing law on the books, but it’s hard to bring a case because, as it turns out, it’s actually really hard to profitably operate as a predatory pricer. Speculating over complicated new theories might be entertaining, but it would be dangerous and irresponsible if these sorts of poorly supported theories were incorporated into public policy.

Ursula von der Leyen has just announced the composition of the next European Commission. For tech firms, the headline is that Margrethe Vestager will not only retain her job as the head of DG Competition, she will also oversee the EU’s entire digital markets policy in her new role as Vice-President in charge of digital policy. Her promotion within the Commission as well as her track record at DG Competition both suggest that the digital economy will continue to be the fulcrum of European competition and regulatory intervention for the next five years.

The regulation (or not) of digital markets is an extremely important topic. Not only do we spend vast swaths of both our professional and personal lives online, but firms operating in digital markets will likely employ an ever-increasing share of the labor force in the near future

Likely recognizing the growing importance of the digital economy, the previous EU Commission intervened heavily in the digital sphere over the past five years. This resulted in a series of high-profile regulations (including the GDPR, the platform-to-business regulation, and the reform of EU copyright) and competition law decisions (most notably the Google cases). 

Lauded by supporters of the administrative state, these interventions have drawn flak from numerous corners. This includes foreign politicians (especially  Americans) who see in these measures an attempt to protect the EU’s tech industry from its foreign rivals, as well as free market enthusiasts who argue that the old continent has moved further in the direction of digital paternalism. 

Vestager’s increased role within the new Commission, the EU’s heavy regulation of digital markets over the past five years, and early pronouncements from Ursula von der Leyen all suggest that the EU is in for five more years of significant government intervention in the digital sphere.

Vestager the slayer of Big Tech

During her five years as Commissioner for competition, Margrethe Vestager has repeatedly been called the most powerful woman in Brussels (see here and here), and it is easy to see why. Yielding the heavy hammer of European competition and state aid enforcement, she has relentlessly attacked the world’s largest firms, especially American’s so-called “Tech Giants”. 

The record-breaking fines imposed on Google were probably her most high-profile victory. When Vestager entered office, in 2014, the EU’s case against Google had all but stalled. The Commission and Google had spent the best part of four years haggling over a potential remedy that was ultimately thrown out. Grabbing the bull by the horns, Margrethe Vestager made the case her own. 

Five years, three infringement decisions, and 8.25 billion euros later, Google probably wishes it had managed to keep the 2014 settlement alive. While Vestager’s supporters claim that justice was served, Barack Obama and Donald Trump, among others, branded her a protectionist (although, as Geoffrey Manne and I have noted, the evidence for this is decidedly mixed). Critics also argued that her decisions would harm innovation and penalize consumers (see here and here). Regardless, the case propelled Vestager into the public eye. It turned her into one of the most important political forces in Brussels. Cynics might even suggest that this was her plan all along.

But Google is not the only tech firm to have squared off with Vestager. Under her watch, Qualcomm was slapped with a total of €1.239 Billion in fines. The Commission also opened an investigation into Amazon’s operation of its online marketplace. If previous cases are anything to go by, the probe will most probably end with a headline-grabbing fine. The Commission even launched a probe into Facebook’s planned Libra cryptocurrency, even though it has yet to be launched, and recent talk suggests it may never be. Finally, in the area of state aid enforcement, the Commission ordered Ireland to recover €13 Billion in allegedly undue tax benefits from Apple.   

Margrethe Vestager also initiated a large-scale consultation on competition in the digital economy. The ensuing report concluded that the answer was more competition enforcement. Its findings will likely be cited by the Commission as further justification to ramp up its already significant competition investigations in the digital sphere.

Outside of the tech sector, Vestager has shown that she is not afraid to adopt controversial decisions. Blocking the proposed merger between Siemens and Alstom notably drew the ire of Angela Merkel and Emmanuel Macron, as the deal would have created a European champion in the rail industry (a key political demand in Germany and France). 

These numerous interventions all but guarantee that Vestager will not be pushing for light touch regulation in her new role as Vice-President in charge of digital policy. Vestager is also unlikely to put a halt to some of the “Big Tech” investigations that she herself launched during her previous spell at DG Competition. Finally, given her evident political capital in Brussels, it’s a safe bet that she will be given significant leeway to push forward landmark initiatives of her choosing. 

Vestager the prophet

Beneath these attempts to rein-in “Big Tech” lies a deeper agenda that is symptomatic of the EU’s current zeitgeist. Over the past couple of years, the EU has been steadily blazing a trail in digital market regulation (although much less so in digital market entrepreneurship and innovation). Underlying this push is a worldview that sees consumers and small startups as the uninformed victims of gigantic tech firms. True to form, the EU’s solution to this problem is more regulation and government intervention. This is unlikely to change given the Commission’s new (old) leadership.

If digital paternalism is the dogma, then Margrethe Vestager is its prophet. As Thibault Schrepel has shown, her speeches routinely call for digital firms to act “fairly”, and for policymakers to curb their “power”. According to her, it is our democracy that is at stake. In her own words, “you can’t sensibly talk about democracy today, without appreciating the enormous power of digital technology”. And yet, if history tells us one thing, it is that heavy-handed government intervention is anathema to liberal democracy. 

The Commission’s Google decisions neatly illustrate this worldview. For instance, in Google Shopping, the Commission concluded that Google was coercing consumers into using its own services, to the detriment of competition. But the Google Shopping decision focused entirely on competitors, and offered no evidence showing actual harm to consumers (see here). Could it be that users choose Google’s products because they actually prefer them? Rightly or wrongly, the Commission went to great lengths to dismiss evidence that arguably pointed in this direction (see here, §506-538).

Other European forays into the digital space are similarly paternalistic. The General Data Protection Regulation (GDPR) assumes that consumers are ill-equipped to decide what personal information they share with online platforms. Queue a deluge of time-consuming consent forms and cookie-related pop-ups. The jury is still out on whether the GDPR has improved users’ privacy. But it has been extremely costly for businesses — American S&P 500 companies and UK FTSE 350 companies alone spent an estimated total of $9 billion to comply with the GDPR — and has at least temporarily slowed venture capital investment in Europe. 

Likewise, the recently adopted Regulation on platform-to-business relations operates under the assumption that small firms routinely fall prey to powerful digital platforms: 

Given that increasing dependence, the providers of those services [i.e. digital platforms] often have superior bargaining power, which enables them to, in effect, behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of their businesses users and, indirectly, also of consumers in the Union. For instance, they might unilaterally impose on business users practices which grossly deviate from good commercial conduct, or are contrary to good faith and fair dealing. 

But the platform-to-business Regulation conveniently overlooks the fact that economic opportunism is a two-way street. Small startups are equally capable of behaving in ways that greatly harm the reputation and profitability of much larger platforms. The Cambridge Analytica leak springs to mind. And what’s “unfair” to one small business may offer massive benefits to other businesses and consumers

Make what you will about the underlying merits of these individual policies, we should at least recognize that they are part of a greater whole, where Brussels is regulating ever greater aspects of our online lives — and not clearly for the benefit of consumers. 

With Margrethe Vestager now overseeing even more of these regulatory initiatives, readers should expect more of the same. The Mission Letter she received from Ursula von der Leyen is particularly enlightening in that respect: 

I want you to coordinate the work on upgrading our liability and safety rules for digital platforms, services and products as part of a new Digital Services Act…. 

I want you to focus on strengthening competition enforcement in all sectors. 

A hard rain’s a gonna fall… on Big Tech

Today’s announcements all but confirm that the EU will stay its current course in digital markets. This is unfortunate.

Digital firms currently provide consumers with tremendous benefits at no direct charge. A recent study shows that median users would need to be paid €15,875 to give up search engines for a year. They would also require €536 in order to forgo WhatsApp for a month, €97 for Facebook, and €59 to drop digital maps for the same duration. 

By continuing to heap ever more regulations on successful firms, the EU risks killing the goose that laid the golden egg. This is not just a theoretical possibility. The EU’s policies have already put technology firms under huge stress, and it is not clear that this has always been outweighed by benefits to consumers. The GDPR has notably caused numerous foreign firms to stop offering their services in Europe. And the EU’s Google decisions have forced it to start charging manufacturers for some of its apps. Are these really victories for European consumers?

It is also worth asking why there are so few European leaders in the digital economy. Not so long ago, European firms such as Nokia and Ericsson were at the forefront of the digital revolution. Today, with the possible exception of Spotify, the EU has fallen further down the global pecking order in the digital economy. 

The EU knows this, and plans to invest €100 Billion in order to boost European tech startups. But these sums will be all but wasted if excessive regulation threatens the long-term competitiveness of European startups. 

So if more of the same government intervention isn’t the answer, then what is? Recognizing that consumers have agency and are responsible for their own decisions might be a start. If you don’t like Facebook, close your account. Want a search engine that protects your privacy? Try DuckDuckGo. If YouTube and Spotify’s suggestions don’t appeal to you, create your own playlists and turn off the autoplay functions. The digital world has given us more choice than we could ever have dreamt of; but this comes with responsibility. Both Margrethe Vestager and the European institutions have often seemed oblivious to this reality. 

If the EU wants to turn itself into a digital economy powerhouse, it will have to switch towards light-touch regulation that allows firms to experiment with disruptive services, flexible employment options, and novel monetization strategies. But getting there requires a fundamental rethink — one that the EU’s previous leadership refused to contemplate. Margrethe Vestager’s dual role within the next Commission suggests that change isn’t coming any time soon.

FTC v. Qualcomm

Last week the International Center for Law & Economics (ICLE) and twelve noted law and economics scholars filed an amicus brief in the Ninth Circuit in FTC v. Qualcomm, in support of appellant (Qualcomm) and urging reversal of the district court’s decision. The brief was authored by Geoffrey A. Manne, President & founder of ICLE, and Ben Sperry, Associate Director, Legal Research of ICLE. Jarod M. Bona and Aaron R. Gott of Bona Law PC collaborated in drafting the brief and they and their team provided invaluable pro bono legal assistance, for which we are enormously grateful. Signatories on the brief are listed at the end of this post.

We’ve written about the case several times on Truth on the Market, as have a number of guest bloggers, in our ongoing blog series on the case here.   

The ICLE amicus brief focuses on the ways that the district court exceeded the “error cost” guardrails erected by the Supreme Court to minimize the risk and cost of mistaken antitrust decisions, particularly those that wrongly condemn procompetitive behavior. As the brief notes at the outset:

The district court’s decision is disconnected from the underlying economics of the case. It improperly applied antitrust doctrine to the facts, and the result subverts the economic rationale guiding monopolization jurisprudence. The decision—if it stands—will undercut the competitive values antitrust law was designed to protect.  

The antitrust error cost framework was most famously elaborated by Frank Easterbrook in his seminal article, The Limits of Antitrust (1984). It has since been squarely adopted by the Supreme Court—most significantly in Brooke Group (1986), Trinko (2003), and linkLine (2009).  

In essence, the Court’s monopolization case law implements the error cost framework by (among other things) obliging courts to operate under certain decision rules that limit the use of inferences about the consequences of a defendant’s conduct except when the circumstances create what game theorists call a “separating equilibrium.” A separating equilibrium is a 

solution to a game in which players of different types adopt different strategies and thereby allow an uninformed player to draw inferences about an informed player’s type from that player’s actions.

Baird, Gertner & Picker, Game Theory and the Law

The key problem in antitrust is that while the consequence of complained-of conduct for competition (i.e., consumers) is often ambiguous, its deleterious effect on competitors is typically quite evident—whether it is actually anticompetitive or not. The question is whether (and when) it is appropriate to infer anticompetitive effect from discernible harm to competitors. 

Except in the narrowly circumscribed (by Trinko) instance of a unilateral refusal to deal, anticompetitive harm under the rule of reason must be proven. It may not be inferred from harm to competitors, because such an inference is too likely to be mistaken—and “mistaken inferences are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” (Brooke Group (quoting yet another key Supreme Court antitrust error cost case, Matsushita (1986)). 

Yet, as the brief discusses, in finding Qualcomm liable the district court did not demand or find proof of harm to competition. Instead, the court’s opinion relies on impermissible inferences from ambiguous evidence to find that Qualcomm had (and violated) an antitrust duty to deal with rival chip makers and that its conduct resulted in anticompetitive foreclosure of competition. 

We urge you to read the brief (it’s pretty short—maybe the length of three blogs posts) to get the whole argument. Below we draw attention to a few points we make in the brief that are especially significant. 

The district court bases its approach entirely on Microsoft — which it misinterprets in clear contravention of Supreme Court case law

The district court doesn’t stay within the strictures of the Supreme Court’s monopolization case law. In fact, although it obligingly recites some of the error cost language from Trinko, it quickly moves away from Supreme Court precedent and bases its approach entirely on its reading of the D.C. Circuit’s Microsoft (2001) decision. 

Unfortunately, the district court’s reading of Microsoft is mistaken and impermissible under Supreme Court precedent. Indeed, both the Supreme Court and the D.C. Circuit make clear that a finding of illegal monopolization may not rest on an inference of anticompetitive harm.

The district court cites Microsoft for the proposition that

Where a government agency seeks injunctive relief, the Court need only conclude that Qualcomm’s conduct made a “significant contribution” to Qualcomm’s maintenance of monopoly power. The plaintiff is not required to “present direct proof that a defendant’s continued monopoly power is precisely attributable to its anticompetitive conduct.”

It’s true Microsoft held that, in government actions seeking injunctions, “courts [may] infer ‘causation’ from the fact that a defendant has engaged in anticompetitive conduct that ‘reasonably appears capable of making a significant contribution to maintaining monopoly power.’” (Emphasis added). 

But Microsoft never suggested that anticompetitiveness itself may be inferred.

“Causation” and “anticompetitive effect” are not the same thing. Indeed, Microsoft addresses “anticompetitive conduct” and “causation” in separate sections of its decision. And whereas Microsoft allows that courts may infer “causation” in certain government actions, it makes no such allowance with respect to “anticompetitive effect.” In fact, it explicitly rules it out:

[T]he plaintiff… must demonstrate that the monopolist’s conduct indeed has the requisite anticompetitive effect…; no less in a case brought by the Government, it must demonstrate that the monopolist’s conduct harmed competition, not just a competitor.”

The D.C. Circuit subsequently reinforced this clear conclusion of its holding in Microsoft in Rambus

Deceptive conduct—like any other kind—must have an anticompetitive effect in order to form the basis of a monopolization claim…. In Microsoft… [t]he focus of our antitrust scrutiny was properly placed on the resulting harms to competition.

Finding causation entails connecting evidentiary dots, while finding anticompetitive effect requires an economic assessment. Without such analysis it’s impossible to distinguish procompetitive from anticompetitive conduct, and basing liability on such an inference effectively writes “anticompetitive” out of the law.

Thus, the district court is correct when it holds that it “need not conclude that Qualcomm’s conduct is the sole reason for its rivals’ exits or impaired status.” But it is simply wrong to hold—in the same sentence—that it can thus “conclude that Qualcomm’s practices harmed competition and consumers.” The former claim is consistent with Microsoft; the latter is emphatically not.

Under Trinko and Aspen Skiing the district court’s finding of an antitrust duty to deal is impermissible 

Because finding that a company operates under a duty to deal essentially permits a court to infer anticompetitive harm without proof, such a finding “comes dangerously close to being a form of ‘no-fault’ monopolization,” as Herbert Hovenkamp has written. It is also thus seriously disfavored by the Court’s error cost jurisprudence.

In Trinko the Supreme Court interprets its holding in Aspen Skiing to identify essentially a single scenario from which it may plausibly be inferred that a monopolist’s refusal to deal with rivals harms consumers: the existence of a prior, profitable course of dealing, and the termination and replacement of that arrangement with an alternative that not only harms rivals, but also is less profitable for the monopolist.

In an effort to satisfy this standard, the district court states that “because Qualcomm previously licensed its rivals, but voluntarily stopped licensing rivals even though doing so was profitable, Qualcomm terminated a voluntary and profitable course of dealing.”

But it’s not enough merely that the prior arrangement was profitable. Rather, Trinko and Aspen Skiing hold that when a monopolist ends a profitable relationship with a rival, anticompetitive exclusion may be inferred only when it also refuses to engage in an ongoing arrangement that, in the short run, is more profitable than no relationship at all. The key is the relative value to the monopolist of the current options on offer, not the value to the monopolist of the terminated arrangement. In a word, what the Court requires is that the defendant exhibit behavior that, but-for the expectation of future, anticompetitive returns, is irrational.

It should be noted, as John Lopatka (here) and Alan Meese (here) (both of whom joined the amicus brief) have written, that even the Supreme Court’s approach is likely insufficient to permit a court to distinguish between procompetitive and anticompetitive conduct. 

But what is certain is that the district court’s approach in no way permits such an inference.

“Evasion of a competitive constraint” is not an antitrust-relevant refusal to deal

In order to infer anticompetitive effect, it’s not enough that a firm may have a “duty” to deal, as that term is colloquially used, based on some obligation other than an antitrust duty, because it can in no way be inferred from the evasion of that obligation that conduct is anticompetitive.

The district court bases its determination that Qualcomm’s conduct is anticompetitive on the fact that it enables the company to avoid patent exhaustion, FRAND commitments, and thus price competition in the chip market. But this conclusion is directly precluded by the Supreme Court’s holding in NYNEX

Indeed, in Rambus, the D.C. Circuit, citing NYNEX, rejected the FTC’s contention that it may infer anticompetitive effect from defendant’s evasion of a constraint on its monopoly power in an analogous SEP-licensing case: “But again, as in NYNEX, an otherwise lawful monopolist’s end-run around price constraints, even when deceptive or fraudulent, does not alone present a harm to competition.”

As Josh Wright has noted:

[T]he objection to the “evasion” of any constraint approach is… that it opens the door to enforcement actions applied to business conduct that is not likely to harm competition and might be welfare increasing.

Thus NYNEX and Rambus (and linkLine) reinforce the Court’s repeated holding that an inference of harm to competition is permissible only where conduct points clearly to anticompetitive effect—and, bad as they may be, evading obligations under other laws or violating norms of “business morality” do not suffice.

The district court’s elaborate theory of harm rests fundamentally on the claim that Qualcomm injures rivals—and the record is devoid of evidence demonstrating actual harm to competition. Instead, the court infers it from what it labels “unreasonably high” royalty rates, enabled by Qualcomm’s evasion of competition from rivals. In turn, the court finds that that evasion of competition can be the source of liability if what Qualcomm evaded was an antitrust duty to deal. And, in impermissibly circular fashion, the court finds that Qualcomm indeed evaded an antitrust duty to deal—because its conduct allowed it to sustain “unreasonably high” prices. 

The Court’s antitrust error cost jurisprudence—from Brooke Group to NYNEX to Trinko & linkLine—stands for the proposition that no such circular inferences are permitted.

The district court’s foreclosure analysis also improperly relies on inferences in lieu of economic evidence

Because the district court doesn’t perform a competitive effects analysis, it fails to demonstrate the requisite “substantial” foreclosure of competition required to sustain a claim of anticompetitive exclusion. Instead the court once again infers anticompetitive harm from harm to competitors. 

The district court makes no effort to establish the quantity of competition foreclosed as required by the Supreme Court. Nor does the court demonstrate that the alleged foreclosure harms competition, as opposed to just rivals. Foreclosure per se is not impermissible and may be perfectly consistent with procompetitive conduct.

Again citing Microsoft, the district court asserts that a quantitative finding is not required. Yet, as the court’s citation to Microsoft should have made clear, in its stead a court must find actual anticompetitive effect; it may not simply assert it. As Microsoft held: 

It is clear that in all cases the plaintiff must… prove the degree of foreclosure. This is a prudential requirement; exclusivity provisions in contracts may serve many useful purposes. 

The court essentially infers substantiality from the fact that Qualcomm entered into exclusive deals with Apple (actually, volume discounts), from which the court concludes that Qualcomm foreclosed rivals’ access to a key customer. But its inference that this led to substantial foreclosure is based on internal business statements—so-called “hot docs”—characterizing the importance of Apple as a customer. Yet, as Geoffrey Manne and Marc Williamson explain, such documentary evidence is unreliable as a guide to economic significance or legal effect: 

Business people will often characterize information from a business perspective, and these characterizations may seem to have economic implications. However, business actors are subject to numerous forces that influence the rhetoric they use and the conclusions they draw….

There are perfectly good reasons to expect to see “bad” documents in business settings when there is no antitrust violation lurking behind them.

Assuming such language has the requisite economic or legal significance is unsupportable—especially when, as here, the requisite standard demands a particular quantitative significance.

Moreover, the court’s “surcharge” theory of exclusionary harm rests on assumptions regarding the mechanism by which the alleged surcharge excludes rivals and harms consumers. But the court incorrectly asserts that only one mechanism operates—and it makes no effort to quantify it. 

The court cites “basic economics” via Mankiw’s Principles of Microeconomics text for its conclusion:

The surcharge affects demand for rivals’ chips because as a matter of basic economics, regardless of whether a surcharge is imposed on OEMs or directly on Qualcomm’s rivals, “the price paid by buyers rises, and the price received by sellers falls.” Thus, the surcharge “places a wedge between the price that buyers pay and the price that sellers receive,” and demand for such transactions decreases. Rivals see lower sales volumes and lower margins, and consumers see less advanced features as competition decreases.

But even assuming the court is correct that Qualcomm’s conduct entails such a surcharge, basic economics does not hold that decreased demand for rivals’ chips is the only possible outcome. 

In actuality, an increase in the cost of an input for OEMs can have three possible effects:

  1. OEMs can pass all or some of the cost increase on to consumers in the form of higher phone prices. Assuming some elasticity of demand, this would mean fewer phone sales and thus less demand by OEMs for chips, as the court asserts. But the extent of that effect would depend on consumers’ demand elasticity and the magnitude of the cost increase as a percentage of the phone price. If demand is highly inelastic at this price (i.e., relatively insensitive to the relevant price change), it may have a tiny effect on the number of phones sold and thus the number of chips purchased—approaching zero as price insensitivity increases.
  2. OEMs can absorb the cost increase and realize lower profits but continue to sell the same number of phones and purchase the same number of chips. This would not directly affect demand for chips or their prices.
  3. OEMs can respond to a price increase by purchasing fewer chips from rivals and more chips from Qualcomm. While this would affect rivals’ chip sales, it would not necessarily affect consumer prices, the total number of phones sold, or OEMs’ margins—that result would depend on whether Qualcomm’s chips cost more or less than its rivals’. If the latter, it would even increase OEMs’ margins and/or lower consumer prices and increase output.

Alternatively, of course, the effect could be some combination of these.

Whether any of these outcomes would substantially exclude rivals is inherently uncertain to begin with. But demonstrating a reduction in rivals’ chip sales is a necessary but not sufficient condition for proving anticompetitive foreclosure. The FTC didn’t even demonstrate that rivals were substantially harmed, let alone that there was any effect on consumers—nor did the district court make such findings. 

Doing so would entail consideration of whether decreased demand for rivals’ chips flows from reduced consumer demand or OEMs’ switching to Qualcomm for supply, how consumer demand elasticity affects rivals’ chip sales, and whether Qualcomm’s chips were actually less or more expensive than rivals’. Yet the court determined none of these. 

Conclusion

Contrary to established Supreme Court precedent, the district court’s decision relies on mere inferences to establish anticompetitive effect. The decision, if it stands, would render a wide range of potentially procompetitive conduct presumptively illegal and thus harm consumer welfare. It should be reversed by the Ninth Circuit.

Joining ICLE on the brief are:

  • Donald J. Boudreaux, Professor of Economics, George Mason University
  • Kenneth G. Elzinga, Robert C. Taylor Professor of Economics, University of Virginia
  • Janice Hauge, Professor of Economics, University of North Texas
  • Justin (Gus) Hurwitz, Associate Professor of Law, University of Nebraska College of Law; Director of Law & Economics Programs, ICLE
  • Thomas A. Lambert, Wall Chair in Corporate Law and Governance, University of Missouri Law School
  • John E. Lopatka, A. Robert Noll Distinguished Professor of Law, Penn State University Law School
  • Daniel Lyons, Professor of Law, Boston College Law School
  • Geoffrey A. Manne, President and Founder, International Center for Law & Economics; Distinguished Fellow, Northwestern University Center on Law, Business & Economics
  • Alan J. Meese, Ball Professor of Law, William & Mary Law School
  • Paul H. Rubin, Samuel Candler Dobbs Professor of Economics Emeritus, Emory University
  • Vernon L. Smith, George L. Argyros Endowed Chair in Finance and Economics, Chapman University School of Business; Nobel Laureate in Economics, 2002
  • Michael Sykuta, Associate Professor of Economics, University of Missouri


[This post is the seventh in an ongoing symposium on “Should We Break Up Big Tech?” that features analysis and opinion from various perspectives.]

[This post is authored by Alec Stapp, Research Fellow at the International Center for Law & Economics]

Should we break up Microsoft? 

In all the talk of breaking up “Big Tech,” no one seems to mention the biggest tech company of them all. Microsoft’s market cap is currently higher than those of Apple, Google, Amazon, and Facebook. If big is bad, then, at the moment, Microsoft is the worst.

Apart from size, antitrust activists also claim that the structure and behavior of the Big Four — Facebook, Google, Apple, and Amazon — is why they deserve to be broken up. But they never include Microsoft, which is curious given that most of their critiques also apply to the largest tech giant:

  1. Microsoft is big (current market cap exceeds $1 trillion)
  2. Microsoft is dominant in narrowly-defined markets (e.g., desktop operating systems)
  3. Microsoft is simultaneously operating and competing on a platform (i.e., the Microsoft Store)
  4. Microsoft is a conglomerate capable of leveraging dominance from one market into another (e.g., Windows, Office 365, Azure)
  5. Microsoft has its own “kill zone” for startups (196 acquisitions since 1994)
  6. Microsoft operates a search engine that preferences its own content over third-party content (i.e., Bing)
  7. Microsoft operates a platform that moderates user-generated content (i.e., LinkedIn)

To be clear, this is not to say that an antitrust case against Microsoft is as strong as the case against the others. Rather, it is to say that the cases against the Big Four on these dimensions are as weak as the case against Microsoft, as I will show below.

Big is bad

Tim Wu published a book last year arguing for more vigorous antitrust enforcement — including against Big Tech — called “The Curse of Bigness.” As you can tell by the title, he argues, in essence, for a return to the bygone era of “big is bad” presumptions. In his book, Wu mentions “Microsoft” 29 times, but only in the context of its 1990s antitrust case. On the other hand, Wu has explicitly called for antitrust investigations of Amazon, Facebook, and Google. It’s unclear why big should be considered bad when it comes to the latter group but not when it comes to Microsoft. Maybe bigness isn’t actually a curse, after all.

As the saying goes in antitrust, “Big is not bad; big behaving badly is bad.” This aphorism arose to counter erroneous reasoning during the era of structure-conduct-performance when big was presumed to mean bad. Thanks to an improved theoretical and empirical understanding of the nature of the competitive process, there is now a consensus that firms can grow large either via superior efficiency or by engaging in anticompetitive behavior. Size alone does not tell us how a firm grew big — so it is not a relevant metric.

Dominance in narrowly-defined markets

Critics of Google say it has a monopoly on search and critics of Facebook say it has a monopoly on social networking. Microsoft is similarly dominant in at least a few narrowly-defined markets, including desktop operating systems (Windows has a 78% market share globally): 

Source: StatCounter

Microsoft is also dominant in the “professional networking platform” market after its acquisition of LinkedIn in 2016. And the legacy tech giant is still the clear leader in the “paid productivity software” market. (Microsoft’s Office 365 revenue is roughly 10x Google’s G Suite revenue).

The problem here is obvious. These are overly-narrow market definitions for conducting an antitrust analysis. Is it true that Facebook’s platforms are the only service that can connect you with your friends? Should we really restrict the productivity market to “paid”-only options (as the EU similarly did in its Android decision) when there are so many free options available? These questions are laughable. Proper market definition requires considering whether a hypothetical monopolist could profitably impose a small but significant and non-transitory increase in price (SSNIP). If not (which is likely the case in the narrow markets above), then we should employ a broader market definition in each case.

Simultaneously operating and competing on a platform

Elizabeth Warren likes to say that if you own a platform, then you shouldn’t both be an umpire and have a team in the game. Let’s put aside the problems with that flawed analogy for now. What she means is that you shouldn’t both run the platform and sell products, services, or apps on that platform (because it’s inherently unfair to the other sellers). 

Warren’s solution to this “problem” would be to create a regulated class of businesses called “platform utilities” which are “companies with an annual global revenue of $25 billion or more and that offer to the public an online marketplace, an exchange, or a platform for connecting third parties.” Microsoft’s revenue last quarter was $32.5 billion, so it easily meets the first threshold. And Windows obviously qualifies as “a platform for connecting third parties.”

Just as in mobile operating systems, desktop operating systems are compatible with third-party applications. These third-party apps can be free (e.g., iTunes) or paid (e.g., Adobe Photoshop). Of course, Microsoft also makes apps for Windows (e.g., Word, PowerPoint, Excel, etc.). But the more you think about the technical details, the blurrier the line between the operating system and applications becomes. Is the browser an add-on to the OS or a part of it (as Microsoft Edge appears to be)? The most deeply-embedded applications in an OS are simply called “features.”

Even though Warren hasn’t explicitly mentioned that her plan would cover Microsoft, it almost certainly would. Previously, she left Apple out of the Medium post announcing her policy, only to later tell a journalist that the iPhone maker would also be prohibited from producing its own apps. But what Warren fails to include in her announcement that she would break up Apple is that trying to police the line between a first-party platform and third-party applications would be a nightmare for companies and regulators, likely leading to less innovation and higher prices for consumers (as they attempt to rebuild their previous bundles).

Leveraging dominance from one market into another

The core critique in Lina Khan’s “Amazon’s Antitrust Paradox” is that the very structure of Amazon itself is what leads to its anticompetitive behavior. Khan argues (in spite of the data) that Amazon uses profits in some lines of business to subsidize predatory pricing in other lines of businesses. Furthermore, she claims that Amazon uses data from its Amazon Web Services unit to spy on competitors and snuff them out before they become a threat.

Of course, this is similar to the theory of harm in Microsoft’s 1990s antitrust case, that the desktop giant was leveraging its monopoly from the operating system market into the browser market. Why don’t we hear the same concern today about Microsoft? Like both Amazon and Google, you could uncharitably describe Microsoft as extending its tentacles into as many sectors of the economy as possible. Here are some of the markets in which Microsoft competes (and note how the Big Four also compete in many of these same markets):

What these potential antitrust harms leave out are the clear consumer benefits from bundling and vertical integration. Microsoft’s relationships with customers in one market might make it the most efficient vendor in related — but separate — markets. It is unsurprising, for example, that Windows customers would also frequently be Office customers. Furthermore, the zero marginal cost nature of software makes it an ideal product for bundling, which redounds to the benefit of consumers.

The “kill zone” for startups

In a recent article for The New York Times, Tim Wu and Stuart A. Thompson criticize Facebook and Google for the number of acquisitions they have made. They point out that “Google has acquired at least 270 companies over nearly two decades” and “Facebook has acquired at least 92 companies since 2007”, arguing that allowing such a large number of acquisitions to occur is conclusive evidence of regulatory failure.

Microsoft has made 196 acquisitions since 1994, but they receive no mention in the NYT article (or in most of the discussion around supposed “kill zones”). But the acquisitions by Microsoft or Facebook or Google are, in general, not problematic. They provide a crucial channel for liquidity in the venture capital and startup communities (the other channel being IPOs). According to the latest data from Orrick and Crunchbase, between 2010 and 2018, there were 21,844 acquisitions of tech startups for a total deal value of $1.193 trillion

By comparison, according to data compiled by Jay R. Ritter, a professor at the University of Florida, there were 331 tech IPOs for a total market capitalization of $649.6 billion over the same period. Making it harder for a startup to be acquired would not result in more venture capital investment (and therefore not in more IPOs), according to recent research by Gordon M. Phillips and Alexei Zhdanov. The researchers show that “the passage of a pro-takeover law in a country is associated with more subsequent VC deals in that country, while the enactment of a business combination antitakeover law in the U.S. has a negative effect on subsequent VC investment.”

As investor and serial entrepreneur Leonard Speiser said recently, “If the DOJ starts going after tech companies for making acquisitions, venture investors will be much less likely to invest in new startups, thereby reducing competition in a far more harmful way.” 

Search engine bias

Google is often accused of biasing its search results to favor its own products and services. The argument goes that if we broke them up, a thousand search engines would bloom and competition among them would lead to less-biased search results. While it is a very difficult — if not impossible — empirical question to determine what a “neutral” search engine would return, one attempt by Josh Wright found that “own-content bias is actually an infrequent phenomenon, and Google references its own content more favorably than other search engines far less frequently than does Bing.” 

The report goes on to note that “Google references own content in its first results position when no other engine does in just 6.7% of queries; Bing does so over twice as often (14.3%).” Arguably, users of a particular search engine might be more interested in seeing content from that company because they have a preexisting relationship. But regardless of how we interpret these results, it’s clear this not a frequent phenomenon.

So why is Microsoft being left out of the antitrust debate now?

One potential reason why Google, Facebook, and Amazon have been singled out for criticism of practices that seem common in the tech industry (and are often pro-consumer) may be due to the prevailing business model in the journalism industry. Google and Facebook are by far the largest competitors in the digital advertising market, and Amazon is expected to be the third-largest player by next year, according to eMarketer. As Ramsi Woodcock pointed out, news publications are also competing for advertising dollars, the type of conflict of interest that usually would warrant disclosure if, say, a journalist held stock in a company they were covering.

Or perhaps Microsoft has successfully avoided receiving the same level of antitrust scrutiny as the Big Four because it is neither primarily consumer-facing like Apple or Amazon nor does it operate a platform with a significant amount of political speech via user-generated content (UGC) like Facebook or Google (YouTube). Yes, Microsoft moderates content on LinkedIn, but the public does not get outraged when deplatforming merely prevents someone from spamming their colleagues with requests “to add you to my professional network.”

Microsoft’s core areas are in the enterprise market, which allows it to sidestep the current debates about the supposed censorship of conservatives or unfair platform competition. To be clear, consumer-facing companies or platforms with user-generated content do not uniquely merit antitrust scrutiny. On the contrary, the benefits to consumers from these platforms are manifest. If this theory about why Microsoft has escaped scrutiny is correct, it means the public discussion thus far about Big Tech and antitrust has been driven by perception, not substance.