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US FTC wastes everyone’s time by suing Facebook for acquisitions it approved

The Federal Trade Commission and a bunch of Attorneys General reckon Facebook’s heart wasn’t in the right place when it bought WhatsApp and Instagram.

“FTC Sues Facebook for Illegal Monopolization,” declares the press release, as if it has no problem with legal monopolization. So beings one of the more ill-conceived, amateurish, and vexatious major legal actions you’ll ever see. The essence of the complaint is that Facebook only acquired Instagram in 2012 and WhatsApp in 2014 to eliminate competition.

And? What is market consolidation if not the elimination of competition? What M&A activity can be said to have no element of competition reduction to it? Are they saying no company should ever be allowed to acquire a competitor? The whole premise of the action is so fundamentally flawed that we have to assume it was the product of one of those drunken Zoom meetings we’ve all been reduced to since it was decided the outside world is too dangerous to risk visiting.

“Personal social networking is central to the lives of millions of Americans,” said Ian Conner, Director of the FTC’s Bureau of Competition. “Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition. Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive.”

In other words the FTC wants to undo two acquisitions it approved itself several years ago because it’s not happy about how things have turned out. If a monopoly has resulted from them, surely the FTC is the most at fault for letting that happen. The release even goes on about how much money Facebook makes, as if that alone is reason enough to punish it.

In its public response Facebook, of course, notes the FTC’s approval of the acquisitions. “Now, many years later, with seemingly no regard for settled law or the consequences to innovation and investment, the agency is saying it got it wrong and wants a do-over,” wrote Jennifer Newstead, Facebook General Counsel.

“In addition to being revisionist history, this is simply not how the antitrust laws are supposed to work. No American antitrust enforcer has ever brought a case like this before, and for good reason. The FTC and states stood by for years while Facebook invested billions of dollars and millions of hours to make Instagram and WhatsApp into the apps that users enjoy today. And, notably, two FTC commissioners voted against the action that the FTC has taken today.”

See if you can guess which political party the two dissenting Commissioners are affiliated to. Meanwhile the FTC Chairman, who is expected to leave soon, gets to secure his legacy. How positive that legacy will be is highly debatable, as it’s hard to see the FTC and AGs winning this case. The really tragic part of it is that there probably is a solid antitrust argument buried among the futile revisionism.

The other angle they’re taking is that Facebook is abusing its dominant position. “The complaint also alleges that Facebook, over many years, has imposed anticompetitive conditions on third-party software developers’ access to valuable interconnections to its platform, such as the application programming interfaces (“APIs”) that allow the developers’ apps to interface with Facebook,” wrote the FTC.

“In particular, Facebook allegedly has made key APIs available to third-party applications only on the condition that they refrain from developing competing functionalities, and from connecting with or promoting other social networking services.

“The complaint alleges that Facebook has enforced these policies by cutting off API access to blunt perceived competitive threats from rival personal social networking services, mobile messaging apps, and other apps with social functionalities. For example, in 2013, Twitter launched the app Vine, which allowed users to shoot and share short video segments. In response, according to the complaint, Facebook shut down the API that would have allowed Vine to access friends via Facebook.”

Those look really solid and just the sort of thing the FTC should, albeit very belatedly, be looking into. Which makes it even more baffling that it should decide to obscure and dilute these important matters with its absurd ‘do-over’ strategy. If we give the FTC every possible benefit of the doubt, maybe it’s going for a Trump-style exaggerated initial negotiating position in the hope of eventually meeting Facebook the middle. But that technique only works if that position is in any way plausible.

If the FTC were to succeed in all its aims, that would mean that no acquisition was ever final and that they could be retrospectively undone at any point in the future if the FTC decides they’ve gone too well. For that reason alone, this action has to fail. As is so often the case, the only beneficiaries will be lawyers and grandstanding public officials as this process drags on for years before its inevitable conclusion in favour of Facebook, whose share price barely moved on the news.


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