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Europe charges Apple with antitrust breach, citing Spotify App Store complaint

The European Commission has announced that it’s issued formal antitrust charges against Apple, saying today that its preliminary view is Apple’s app store rules distort competition in the market for music streaming services by raising the costs of competing music streaming app developers.

The Commission begun investigating competition concerns related to iOS App Store (and also Apple Pay) last summer.

“The Commission takes issue with the mandatory use of Apple’s own in-app purchase mechanism imposed on music streaming app developers to distribute their apps via Apple’s App Store,” it wrote today. “The Commission is also concerned that Apple applies certain restrictions on app developers preventing them from informing iPhone and iPad users of alternative, cheaper purchasing possibilities.”

The statement of objections focuses on two rules that Apple imposes in its agreements with music streaming app developers: Namely the mandatory requirement to use its proprietary in-app purchase system (IAP) to distribute paid digital content (with the Commission noting that it charges a 30% commission fee on all such subscriptions bought via IAP); and ‘anti-steering provisions’ which limit the ability of developers to inform users of alternative purchasing options.

“The Commission’s investigation showed that most streaming providers passed this fee [Apple’s 30% cut] on to end users by raising prices,” it wrote, adding: “While Apple allows users to use music subscriptions purchased elsewhere, its rules prevent developers from informing users about such purchasing possibilities, which are usually cheaper. The Commission is concerned that users of Apple devices pay significantly higher prices for their music subscription services or they are prevented from buying certain subscriptions directly in their apps.”

Commenting in a statement, EVP and competition chief Margrethe Vestager, added: “App stores play a central role in today’s digital economy. We can now do our shopping, access news, music or movies via apps instead of visiting websites. Our preliminary finding is that Apple is a gatekeeper to users of iPhones and iPads via the App Store. With Apple Music, Apple also competes with music streaming providers. By setting strict rules on the App store that disadvantage competing music streaming services, Apple deprives users of cheaper music streaming choices and distorts competition. This is done by charging high commission fees on each transaction in the App store for rivals and by forbidding them from informing their customers of alternative subscription options.”

Apple sent us this statement in response:

“Spotify has become the largest music subscription service in the world, and we’re proud for the role we played in that. Spotify does not pay Apple any commission on over 99% of their subscribers, and only pays a 15% commission on those remaining subscribers that they acquired through the App Store. At the core of this case is Spotify’s demand they should be able to advertise alternative deals on their iOS app, a practice that no store in the world allows. Once again, they want all the benefits of the App Store but don’t think they should have to pay anything for that. The Commission’s argument on Spotify’s behalf is the opposite of fair competition.”

Spotify’s founder, Daniel Ek, has also responded to the news of the Commission’s charges against Apple with a jubilant tweet — writing: “Today is a big day. Fairness is the key to competition… we are one step closer to creating a level playing field, which is so important for the entire ecosystem of European developers.”

Vestager is due to hold a press conference shortly — so stay tuned for updates.

This story is developing… 

A number of complaints against Apple’s practices have been lodged with the EU’s competition division in recent years — including by music streaming service Spotify; video games maker Epic Games; and messaging platform Telegram, to name a few of the complainants who have gone public (and been among the most vocal).

The main objection is over the (up to 30%) cut Apple takes on sales made through third parties’ apps — which critics rail against as an ‘Apple tax’ — as well as how it can mandate that developers do not inform users how to circumvent its in-app payment infrastructure, i.e. by signing up for subscriptions via their own website instead of through the App Store. Other complaints include that Apple does not allow third party app stores on iOS.

Apple, meanwhile, has argued that its App Store does not constitute a monopoly. iOS’ global market share of mobile devices is a little over 10% vs Google’s rival Android OS — which is running on the lion’s share of the world’s mobile hardware. But monopoly status depends on how a market is defined by regulators (and if you’re looking at the market for iOS apps then Apple has no competitors).

The iPhone maker also likes to point out that the vast majority of third party apps pay it no commission (as they don’t monetize via in-app payments). While it argues that restrictions on native apps are necessary to protect iOS users from threats to their security and privacy.

Last summer the European Commission said its App Store probe was focused on Apple’s mandatory requirement that app developers use its proprietary in-app purchase system, as well as restrictions applied on the ability of developers to inform iPhone and iPad users of alternative cheaper purchasing possibilities outside of apps.

It also said it was investigating Apple Pay: Looking at the T&Cs and other conditions Apple imposes for integrating its payment solution into others’ apps and websites on iPhones and iPads, and also on limitations it imposes on others’ access to the NFC (contactless payment) functionality on iPhones for payments in stores.

The EU’s antitrust regulator also said then that it was probing allegations of “refusals of access” to Apple Pay.

In March this year the UK also joined the Apple App Store antitrust investigation fray — announcing a formal investigation into whether it has a dominant position and if it imposes unfair or anti-competitive terms on developers using its app store.

US lawmakers have, meanwhile, also been dialling up attention on app stores, plural — and on competition in digital markets more generally — calling in both Apple and Google for questioning over how they operate their respective mobile app marketplaces in recent years.

Last month, for example, the two tech giants’ representatives were pressed on whether their app stores share data with their product development teams — with lawmakers digging into complaints against Apple especially that Cupertino frequently copies others’ apps, ‘sherlocking’ their businesses by releasing native copycats (as the practice has been nicknamed).

Back in July 2020 the House Antitrust Subcommittee took testimony from Apple CEO Tim Cook himself — and went on, in a hefty report on competition in digital markets, to accuse Apple of leveraging its control of iOS and the App Store to “create and enforce barriers to competition and discriminate against and exclude rivals while preferencing its own offerings”.

“Apple also uses its power to exploit app developers through misappropriation of competitively sensitive information and to charge app developers supra-competitive prices within the App Store,” the report went on. “Apple has maintained its dominance due to the presence of network effects, high barriers to entry, and high switching costs in the mobile operating system market.”

The report did not single Apple out — also blasting Google-owner Alphabet, Amazon and Facebook for abusing their market power. And the Justice Department went on to file suit against Google later the same month. So, over in the U.S., the stage is being set for further actions against big tech. Although what, if any, federal charges Apple could face remains to be seen.

At the same time, a number of state-level tech regulation efforts are brewing around big tech and antitrust — including a push in Arizona to relieve developers from Apple and Google’s hefty cut of app store profits.

While an antitrust bill introduced by Republican Josh Hawley earlier this month takes aim at acquisitions, proposing an outright block on big tech’s ability to carry out mergers and acquisitions.

Although that bill looks unlikely to succeed, a flurry of antitrust reform bills are set to introduced as U.S. lawmakers on both sides of the aisle grapple with how to cut big tech down to a competition-friendly size.

In Europe lawmakers are already putting down draft laws with the same overarching goal.

In the EU the Commission has proposed an ex ante regime to prevent big tech from abusing its market power, with the Digital Markets Act set to impose conditions on intermediating platforms who are considered ‘gatekeepers’ to others’ market access.

In the UK, which now sits outside the bloc, the government is also drafting new laws in response to tech giants’ market power — saying it will create a ‘pro-competition’ regime that will apply to platforms with so-called  ‘strategic market status’ — but instead of a set list of requirements it wants to target specific measures per platform.

Lina Khan’s timely tech skepticism makes for a refreshingly friendly FTC confirmation hearing

One never knows how a confirmation hearing will go these days, especially one for a young outsider nominated to an important position despite challenging the status quo and big business. Lina Khan, just such a person up for the position of FTC Commissioner, had a surprisingly pleasant time of it during today’s Senate Commerce Committee confirmation hearing — possibly because her iconoclastic approach to antitrust makes for good politics these days.

Khan, an associate professor of law at Columbia, is best known in the tech community for her incisive essay “Amazon Antitrust’s Paradox,” which laid out the failings of regulatory doctrine that have allowed the retail giant to progressively dominate more and more markets. (She also recently contributed to a House report on tech policy.)

When it was published, in 2018, the feeling that Amazon had begun to abuse its position was, though commonplace in some circles, not really popular in the Capitol. But the growing sense that laissez-faire or insufficient regulations have created monsters in Amazon, Google, and Facebook (to start) has led to a rare bipartisan agreement that we must find some way, any way will do, of putting these upstart corporations back in their place.

This in turn led to a sense of shared purpose and camaraderie in the confirmation hearing, which was a triple header: Khan joined Bill Nelson, nominated to lead NASA, and Leslie Kiernan, who would join the Commerce Department as General Counsel, for a really nice little three-hour chat.

Khan is one of several in the Biden administration who signal a new approach to taking on Big Tech and other businesses that have gotten out of hand, and the questions posed to her by Senators from both sides of the aisle seemed genuine and got genuinely satisfactory answers from a confident Khan.

She deftly avoided a few attempts to bait her — including one involving Section 230; wrong Commission, Senator — and her answers primarily reaffirmed her professional opinion that the FTC should be better informed and more preemptive in its approach to regulating these secretive, powerful corporations.

Here are a few snippets representative of the questioning and indicative of her positions on a few major issues (answers lightly edited for clarity):

On the FTC getting involved in the fight between Google, Facebook, and news providers:

“Everything needs to be on the table. Obviously local journalism is in crisis, and i think the current COVID moment has really underscored the deep democratic emergency that is resulting when we don’t have reliable sources of local news.”

She also cited the increasing concentration of ad markets and the arbitrary nature of, for example, algorithm changes that can have wide-ranging effects on entire industries.

Lina Khan, commissioner of the Federal Trade Commission (FTC) nominee for U.S. President Joe Biden, speaks during a Senate Commerce, Science and Transportation Committee confirmation hearing in Washington, D.C.

Image Credits: Graeme Jennings/Washington Examiner/Bloomberg / Getty Images

On Clarence Thomas’s troubling suggestion that social media companies should be considered “common carriers”:

“I think it prompted a lot of interesting discussion,” she said, very diplomatically. “In the Amazon article, I identified two potential pathways forward when thinking about these dominant digital platforms. One is enforcing competition laws and ensuring that these markets are competitive.” (i.e. using antitrust rules)

“The other is, if we instead recognize that perhaps there are certain economies of scale, network externalities that will lead these markets to stay dominated by a very few number of companies, then we need to apply a different set of rules. We have a long legal tradition of thinking about what types of checks can be applied when there’s a lot of concentration and common carriage is one of those tools.”

“I should clarify that some of these firms are now integrated in so many markets that you may reach for a different set of tools depending on which specific market you’re looking at.”

 

(This was a very polite way of saying common carriage and existing antitrust rules are totally unsuitable for the job.)

On potentially reviewing past mergers the FTC approved:

“The resources of the commission have not really kept pace with the increasing size of the economy, as well as the increasing size and complexity of the deals the commission is reviewing.”

“There was an assumption that digital markets in particular are fast moving so we don’t need to be concerned about potential concentration in the markets, because any exercise of power will get disciplined by entry and new competition. Now of course we know that in the markets you actually have significant network externalities in ways that make them more sticky. In hindsight there’s a growing sense that those merger reviews were a missed opportunity.”

(Here Senator Blackburn (R-TN) in one of the few negative moments fretted about Khan’s “lack of experience in coming to that position” before asking about a spectrum plan — wrong Commission, Senator.)

On the difficulty of enforcing something like an order against Facebook:

“One of the challenges is the deep information asymmetry that exists between some of these firms and enforcers and regulators. I think it’s clear that in some instances the agencies have been a little slow to catch up to the underlying business realities and the empirical realities of how these markets work. So at the very least ensuring the agencies are doing everything they can to keep pace is gonna be important.”

“In social media we have these black box algorithms, proprietary algorithms that can sometimes make it difficult to know what’s really going on. The FTC needs to be using its information gathering capacities to mitigate some of these gaps.”

On extending protections for children and other vulnerable groups online:

Some of these dangers are heightened given some of the ways in which the pandemic has rendered families and children especially dependent on some of these [education] technologies. So I think we need to be especially vigilant here. The previous rules should be the floor, not the ceiling.


Overall there was little partisan bickering and a lot of feeling from both sides that Khan was, if not technically experienced at the job (not rare with a coveted position like FTC Commissioner), about as competent a nominee as anyone could ask for. Not only that but her highly considered and fairly assertive positions on matters of antitrust and competition could help put Amazon and Google, already in the regulatory doghouse, on the defensive for once.

Republican antitrust bill would block all big tech acquisitions

There are about to be a lot of antitrust bills taking aim at big tech, and here’s one more. Senator Josh Hawley (R-MO) rolled out a new bill this week that would take some severe measures to rein in big tech’s power, blocking mergers and acquisitions outright.

The “Trust-Busting for the Twenty-First Century Act” would ban any acquisitions by companies with a market cap of more than $100 billion, including vertical mergers. The bill also proposes changes that would make it easier for the FTC and other regulators to deem a company’s behavior anti-competitive — a key criticism of the outdated antitrust rules that haven’t kept pace with the realities of the tech industry.

Hawley’s legislation would snip some of the red tape around antitrust enforcement by amending the Sherman Act, which made monopolies illegal, and the Clayton Act, which expanded the scope of illegal anti-competitive behavior.

The bill isn’t likely to get too far in a Democratic Senate, but it’s not insignificant. Sen. Amy Klobuchar (D-MN), who chairs the Senate’s antitrust subcommittee, proposed legislation earlier this year that would also create barriers for dominant companies with a habit of scooping up their competitors. Klobuchar’s own ideas for curtailing big tech’s power similarly focus on reforming the antitrust laws that have shaped U.S. business for more than a century.

Click to access The%20Trust-Busting%20for%20the%20Twenty-First%20Century%20Act.pdf

The Republican bill may have some overlap with Democratic proposals, but it still hits some familiar notes from the Trump era of hyper-partisan big tech criticism. Hawley slams “woke mega-corporations” in Silicon Valley for exercising too much power over the information and products that Americans consume. While Democrats naturally don’t share that critique, Hawley’s bill makes it clear that antitrust reform targeting big tech is one policy era where both political parties could align on the ends, even if they don’t see eye to eye on the why.

Hawley’s bill is the latest, but it won’t be the last. Rep. David Cicilline (D-RI), who spearheads tech antitrust efforts in the House, previously announce his own plans to introduce a flurry of antitrust reform bills rather than one sweeping piece of legislation. Those bills, which will be more narrowly targeted to make them difficult for tech lobbyists to defeat, are due out in May.