Europe takes another chunk out of Qualcomm profits

The European Commission has announced it will once again fine Qualcomm for market abuse, with the investigation this time focusing on 3G baseband chipsets.

It seems time does not heal all wounds as this investigation focused on market abuse between 2009 and 2011, and a concept known as ‘predatory pricing’. In short, Qualcomm used its dominant market position to sell products to strategically important customers, below cost price, to effectively kill off any competition before it had a chance to gain momentum.

“Baseband chipsets are key components so mobile devices can connect to the Internet,” said Margrethe Vestager, the Commissioner in charge of competition policy. “Qualcomm sold these products at a price below cost to key customers with the intention of eliminating a competitor.

“Qualcomm’s strategic behaviour prevented competition and innovation in this market and limited the choice available to consumers in a sector with a huge demand and potential for innovative technologies. Since this is illegal under EU antitrust rules, we have today fined Qualcomm €242 million.”

Although the European Commission affords the opportunity for companies to use market advantages to seek profits, but when it becomes anti-competitive the bureaucrats draw a line. This is what has happened in this instance.

At the time, Qualcomm controlled roughly 60% market share of the UMTS baseband chipset segment, three times as great as the nearest competitor, though this position was used to kill competition before it had a chance to emerge. Using its relationships with Huawei and ZTE, Qualcomm sold products at low enough prices no-one could compete.

This is the challenge with segments which have such high-barriers to entry, key customer accounts are critically important, such are the investments which need to be made in R&D. Qualcomm effectively created a loss leader of these products to stem the critical flow of funds into any competition which could develop from the smallest glimmer of hope. In this case, the firm in question was Icera, which was eventually acquired by Nvidia.

The fine in this case represents 1.27% of Qualcomm’s turnover in 2018 and will hopefully deter companies from engaging in anticompetitive activity in the future.

For Vestager, this is another parting shot as she wraps up her tenure in the competition policy office, a position she has held since 2014.

The Commissioner has built a reputation of taking on big tech who make a habit of practising in anti-competitive activities. Qualcomm has been a frequent combatant of Vestager, though she has got plenty of experience dealing with the likes of Google and Amazon also, the latter of which is the subject of the latest probe.

Assuming the tech giants will be happy to see the back of her would be very reasonable, though it remains to be seen who will replace the feisty and combative Vestager.

DoJ antitrust chief readies for battle against big tech

There have been plenty of whispers in the back alleys of Silicon Valley of the antitrust boogeyman and now the nightmares are turning into reality.

Speaking at an industry conference in Israel, Assistant Attorney General Makan Delrahim outlined his views on competitiveness in the technology industry. Those who were anticipating an antitrust battle in the US can feel suitably vindicated, as Delrahim effectively confirms he has Google and Apple firmly in the crosshairs.

“The digital economy is a fact of life, but it is not all things to all people,” said Delrahim. “There has been robust public discussion about whether the broader economy, undoubtedly transformed by digital technologies, is working well for everyone.”

Although this is not necessarily shocking news, it is a nuanced confirmation of the up-coming assault against big tech.

Last week, the US took the first tentative steps towards addressing the influence of technology on today’s society. The House Antitrust Subcommittee announced the launch of a bipartisan investigation into competition in digital markets, potentially offering a threat to solid foundation of the technology giants. Diluting the dominance of big tech is going to be a very difficult task, but it does appear the groundwork is being laid.

In this speech, Delrahim is effectively outlining the Department of Justice’s plan, as well as the justification for tackling big tech.

“Where there are credible concerns that a transaction or business practice is anticompetitive, timely and effective antitrust enforcement is imperative,” said Delrahim.

“…After all, the government’s successful antitrust case against Microsoft arguably paved the way for companies like Google, Yahoo, and Apple to enter the market with their own desktop and mobile products.”

Microsoft’s dominance of the technology world in the 90s should not be underplayed and perhaps can be very accurately likened to Google’s influence today. Although the US Government was not successful in breaking-up Microsoft as an organization, it did manage to dilute its power and broaden the spread of wealth. When a company starts to dictate play in the way Microsoft did, the US Government starts to get a bit twitchy.

This is the issue which the likes of Google, Amazon and Apple are facing today. Such is the success of the business, through the creation of best-in-class products and strategic acquisitions to stutter the progress of competitors, the fortunes of the technology industry are incredibly concentrated. This is what Delrahim and his colleagues want to address.

Specifics are often lost in such conference speeches, but an interesting point raised by Delrahim focused on “network effects”. In short, an organization has such control over the supporting ecosystem competition is suffocated before it has any genuine chance to be competitive. Perhaps this is done through acquiring nascent competitors or manipulating the ecosystem.

Although there have been some hints of strategy from Delrahim, the specifics are still evading the industry. That said, it is becoming increasingly clear that the US Government wants to dilute the power and influence of big tech.

US attempts first step towards breaking up big tech

The US House Antitrust Subcommittee has formed a bipartisan investigation into competition in digital markets, potentially offering a threat to solid foundation of the technology giants.

While the technology giants have increasingly become political punching bags over the last few years, the industry has been pretty effective at dodging any material impact. Many politicians have taken aim, but few have landed a shot. This approach, taking in voices from both sides of the US political spectrum might offer more of a challenge.

“The growth of monopoly power across our economy is one of the most pressing economic and political challenges we face today,” said Antitrust Subcommittee Chairman David Cicilline. “Market power in digital markets presents a whole new set of dangers.

“After four decades of weak antitrust enforcement and judicial hostility to antitrust cases, it is critical that Congress step in to determine whether existing laws are adequate to tackle abusive conduct by platform gatekeepers or whether we need new legislation to respond to this challenge.”

To date, the technology giants have operated with relative regulatory freedom, though the shackles are being dragged towards Silicon Valley. This is not an unusual situation; embryonic industries are often given room to growth and prosper before being tied back with red tape when the influence starts to become notable.

For the tech space, the calls for regulation have been getting lounder month-on-month. GDPR was one of the first major pieces of legislation, while the constant inability of the industry to demonstrate its ability to self-regulate have been forcing the hand of politicians who often do not like to get involved in things they do not understand.

“Big Tech plays a huge role in our economy and our world,” said Congressman Doug Collins. “As tech has expanded its market share, more and more questions have arisen about whether the market remains competitive.

“Our bipartisan look at competition in the digital markets gives us the chance to answer these questions and, if necessary, to take action. I appreciate the partnership of Chairman Nadler, Subcommittee Chairman Cicilline and Subcommittee Ranking Member Sensenbrenner on these important issues.”

Despite negative connotations, monopolies do offer significant benefits to a country, and it seems the US has traditionally been very effective at judging when it is happy to stand-off and when to step-in.

In 1890, the Sherman Antitrust Act was passed into US law. This act banned trusts and monopolistic combinations that lessened or otherwise hampered interstate and international trade. Although it was not necessarily the most successful of Acts to start with, it soon began to swing into motion.

One of the first monopolies to be attacked by politicians was Standard Oil in 1911. At the time, Standard Oil had cornered 90% of the oil market across the country but was allowed to thrive. It was only broken up, coincidentally, once the firm had finished construction of nationwide train infrastructure, dramatically decreasing the cost of operations. At this point, the Sherman Antitrust Act was used to open up the industry.

There has been a lot more regulation passed in the intervening years since 1890, the Clayton Act was introduced in 1914 to add more clarity to the definition of when a monopoly causes more damage than good, and more industries have been carved up. From sugar and tobacco to meat packaging and, more recently, telecommunications. The trend seems to be the same.

Every time monopolies have been challenged by US politicians there seems to be a watershed moment reached. They might be a few years late with the technology industry, but the same could be said here.

The fact is monopolies offer a concentration of wealth and scale opportunities. A few might be collecting all the riches, but operational efficiencies allow for more rapid growth and expansion. It makes sense to ‘dance with the devil’ for a short period in pursuit of the greater good.

Almost every aspect of the digital economy has now been normalised in the eyes of the mass market, and those areas which haven’t are increasingly becoming standard practice (AI for example). The likes of Facebook, Google, Amazon, Netflix, Uber, AirBnB and Microsoft can largely be thanked for that, but now the mission is complete, consumers are open to a new way of spending and ecosystems have the potential to flourish. It seems the benefits of having tech monopolies has passed and the wealth needs to be spread more evenly.

This is of course not to say the tech giants will disappear, or that the House will be successful in their pursuit of increased competition, diversity and evenly dispersed profits.

What the tech giants have become very good at in recent years is lobbying and challenging legislation. One is the subtle art of influence, a shady practise often conducted over dinner or behind closed doors, the other is the heavy hammer of legal expertise, hitting back at new rules with expensive lawyers, fuelled by the profits of market dominance.

The likes of Facebook and Amazon will not take this challenge lying down. Executives make too much money, investors have too much skin in the game and egos are too great to have empires carved apart. These companies have absorbed the blood, sweat and tears of many of these executives, with countless sleepless nights directed towards the pursuit of billions. These executives are dedicated hunters, and they will not let their prey out of their sights without a bloody fight.

One example of the industry winning is Microsoft. In the 90s, Microsoft was challenged on whether it was abusing its position as essentially a non-coercive monopoly. It might have lost the case and has been the focal point of other antitrust cases since, but the red tapers were not successful in breaking up the behemoth.

Other examples of less successful ventures from the politicians focus on the utilities space. In some regions, monopolies are allowed to exist, though strict pricing regulations prevent any, in theory anyway, market abuses. This has stemmed the prospect of flourishing spreadsheets, which would be just as bad an outcome for the tech giants and investors.

Another factor to consider is that of competence. If the politicians are going to be effective in breaking up big tech, they first have to understand how it works today and what the risks of tomorrow are.

There are two problems here. Firstly, the best talent (engineering, accountancy or legal for example) are drafting into the ranks of the technology giants. And secondly, career politicians are more common than not. These are people that specialise in the celebritised-practice which politics has become, they are not leaders of industry as they were in previous generations. This gulf in competence could prove to be a major problem for the Subcommittee.

Monopolies have their place in the economy, at least for a short period of time, and this investigation from the House  Antitrust Subcommittee will aim to figure out whether this time has been reached. First, the politicians have to prove there is evidence of monopolistic abuses, or serious potential, and then comes the difficult job; squaring up to the technology giants, industry experts and the mountains of cash fuelling them.

Google and Amazon are feeling the antitrust heat in the US

US tech giants Google and Amazon are set to face antitrust investigations in the US according to multiple reports.

All the usual suspects among US media seem to have got the same leak that the US justice department is preparing an antitrust investigation into Google. Bloomberg, for example, thinks it could get pretty serious for Google since the political climate has turned fairly hostile to big tech. The investigation seems likely to be a broad one, as opposed to focusing on any single alleged abuse of its dominant market position.

Meanwhile the Washington Post reckons Amazon is also going to get increased antitrust scrutiny, although not necessarily the formal investigation Google is threatened with. This will be the responsibility of the Federal Trade Commission thanks to the two regulatory bodies apparently deciding to pick a tech giant each for a spot of antitrust aggro.

Tech giants such as these two, Facebook, etc, have increasingly become political footballs in the US, not just for their market dominance but for their perceived influence over the political process. The role of social media in elections has been under intense scrutiny, especially from those who were unhappy with the Trump and Brexit elections, and Google owns YouTube, which is where a lot of independent political commentary takes place.

President Trump is increasingly of the opinion that Silicon Valley companies are biased against conservative viewpoints, which affects their decisions on who to censor from their platforms. On top of that fairly solid precedent has been set in Europe when it comes to this sort of action and their commercial dominance means the US tech giants have few allies, even on their home turf.

Supreme Court opens the legal floodgates on Apple

Apple is potentially on the verge of facing a tidal wave of lawsuits as the Supreme Court agrees the iLeader is allowed to be challenged on a potential abuse of power in the app economy.

The pivotal case the Supreme Court has been ruling on is Apple vs. Pepper. Robert Pepper and other plaintiffs, various iPhone owners, filed an antitrust lawsuit against Apple claiming the firm monopolised the app market through the App Store, with developer licence fees and the 30% commission ultimately driving the price up for consumers.

One the other side of the argument, Apple suggested iPhone owners were actually customers of the developers, while the developers were customers of Apple. This nuanced argument leans on legal precedent set in doctrine known as Illinois Brick where ‘indirect purchasers’ of a product don’t have the power to file antitrust cases. In distancing itself from the end-user in the app economy, Apple was hoping to protect itself.

In the first instance, the district court ruled in favour of Apple, dismissing the case, while the Ninth Circuit Court reversed the decision, ruling that consumers are purchasing from Apple not the developers. The fight was then escalated up to the Supreme Court, with the highest legal battleground in the US ruling 5-4 in favour of the iPhone owners.

What is worth noting is this is not a ruling which states Apple’s App Store is a monopoly, but a decision which allows users to file antitrust lawsuits against the iLeader. It’s a step towards another legal headache but is by no means a sign of guilt.

For Apple, this will come as an unwanted distraction as it attempts to scale it software and services business, in which the App Store is a key cog. The last few years have seen the Apple team attempt to create a more balanced business, with less of a reliance on the staggering hardware segment and reaping the rewards of the blossoming software world.

This decision from the Supreme Court might not assign guilt to Apple, but it certainly creates a monumental migraine. Such is the lawsuit culture in the US it won’t be long before miffed customers just on the bandwagon in pursuit of compensation.

Apple under more antitrust scrutiny in Europe

The Netherlands Authority for Consumers and Markets (ACM) has launched an investigation into whether Apple is abusing its power through the App Store, favouring its own apps over rivals.

The Dutch regulator has reported back after receiving several complaints regarding Apple’s behaviour surrounding the App Store, suggesting there might be some foul play afoot. The initial foray has led the ACM into a larger investigation to understand whether Apple, and Google for that matter, are abusing dominant positions in the app economy to drive more favourable positions for their own apps and services.

“To a large degree, app providers depend on Apple and Google for offering apps to users. In the market study, ACM has received indications from app providers, which seem to indicate that Apple abuses its position in the App Store,” said Henk Don, an ACM board member. “That is why ACM sees sufficient reason for launching a follow-up investigation, on the basis of competition law.”

The news will not be welcomed by Apple, which is also under investigation at European level following disagreement with music streaming app Spotify. Spotify is suggesting Apple deliberately disadvantages other app developers, and while the complaint lodged with the European Commission is confidential, it has created a website listed the five ways Apple does not play fair in the app economy:

  1. The 30% fee which is applied to in-app purchases
  2. Apple won’t allow developers to communicate deals and promotions directly to customers
  3. Users cannot upgrade to premium services in app
  4. Apple rejects app enhancements for unknown reasons
  5. Spotify cannot be installed on all devices in the Apple portfolio

Some of the reasons might sounds a little moany but Apple does not seem to be laying the same rules on its own apps and services. For example, Spotify cannot be played on the Homepod, but iTunes can. This point might be of interest to the Dutch authorities.

While the original complaints received by the Dutch regulator have mainly been directed towards Apple and the App Store, the ACM also notes the dominant position Google is currently in for the Android app ecosystem. This investigation will be wide enough to assess the position of both companies and their knock-on activities in the developing ecosystem.

The initial investigation, which the ACM admits has not been in-depth enough, has uncovered some worrying elements of the business, we can’t imagine it will be difficult to dig up much more dirt on the pair.

Although both the App Store and Play Store are critical gateways in connecting developers to millions of consumers, that doesn’t mean developers need to be happy about the terms. Many are becoming increasingly frustrated with conditions, notably the 30% commission, with the larger developers looking to avoid working with the pair entirely.

There are few titles which have the brand recognition to achieve success without the reach of the App Store or Play Store, but Fortnite is one. Last August, Fortnite announced it would only offer downloads through its own website as opposed to the app stores. Estimates suggest it would save the firm $50 million in commission paid to Apple and Google.

The ACM has been keen to point out it has not come to a conclusion, despite some worrying findings in the initial investigation, and it may well find no antitrust violations. Despite pleas of impartiality, Apple and Google should certainly be worried; Europe has been pretty hot on antitrust cases recently.

UK Government mulls new digital competition laws

An independent panel has submitted a new report to HM Treasury which recommends the formation of a new department to tackle anti-competition and the revamp of rules.

Led by former Chief Economist to President Obama, Professor Jason Furman, the lengthy report comes to a conclusion many are already aware of; today’s rules are not fit for purpose to effectively manage and govern the digital economy.

“The United Kingdom has an opportunity to seize the full potential of the digital sector, increasing the benefits for consumers and fostering an even more vibrant ecosystem for businesses,” the report states.

“Competition should be at the heart of this strategy, leading companies to produce better outcomes for consumers, helping new companies enter and grow, and continuing to encourage existing companies to innovate.”

In summing up the current landscape, the message is pretty clear. Furman and his team state the UK is currently reliant on rules and regulations designed for yesteryear. Considering how much society and the economy has evolved through the last decade, since the digital world has engulfed almost every aspect of our lives, rules have to keep pace to ensure fair and reasonable business practises are taking place, to offer benefit to the consumer.

The recommendation of change is based on several presumptions. Firstly, digital is good. It helps the consumer and lowers the barriers for entry for small businesses to be created and scaled. Secondly, most digital markets will be dominated by a single player. Third, there are advantages, low margins and profits can mean sometimes it is better to have a smaller number of providers. Fourth, companies cannot be trusted to self-regulate, and finally, government regulations have limitations.

These presumptions have been identified through months of research from the panel and while some might disagree with the statements, being realistic, they are fair and reasonable assumptions. Just because some will not like the outcome, does not mean it is not true. However, knowledge informs future decisions and these statements can inform more appropriate regulation in the future.

This is the problem which many governments are facing nowadays. They realise the world is changing, and rules have to change with them, but new clauses and considerations are being bolted onto regulations which have been designed for a by-gone era. It creates an incredibly complicated red tape maze, which is not help to anyone except those will well-enough paid lawyers to find the loopholes.

“This is why the Panel is recommending the establishment of a digital markets unit, given a remit to use tools and frameworks that will support greater competition and consumer choice in digital markets, and backed by new powers in legislation to ensure they are effective,” the report states.

Furman envisions this department to have three main responsibilities in the first instance. Firstly, the creation of a code of competitive conduct, which would only be applied to the most powerful companies who could be deemed a threat to the emergence or scale of smaller competitors and competition on the whole. Secondly, the team would be tasked with enabling greater personal data mobility and systems with open standards where these tools will increase competition and consumer choice. Finally, to advance data openness.

Outside of this new department, Furman recommends merger policies should be updated, implying the current framework does not take technological advancements seriously enough. Part of this will include updates to antitrust policy, as while monopolies or dominant market positions can be good for efficiencies and benefits for consumers or businesses, there does need to be a mechanism to ensure this position is not abused.

Overall, this is a report which, firstly, makes a lot of sense, but secondly, doesn’t say anything particularly new. Everything which Furman has said is correct, rules are dated, and the chasm is growing larger, but many have already been stating this for some time. Governments don’t seem to be able to take any action unless an expensive economist is given months to come to a relatively obvious conclusion.

That said, Furman’s advice should be heeded. Hopefully the recommendations of a new unit to tackle these challenges will be listened to, though we suspect new responsibilities will be bundled into an existing department and the good intentions will become lost in the mediocrity. We will be happy to be proved incorrect, though it probably is a long-shot.

Google faces yet another antitrust probe, this time in the US

US Senator Orrin Hatch has written to the FTC requesting the body investigate whether it is using it dominant position in search and digital advertising to stifle the market place.

The Republican Senator, quite a frequent critic of the technology industry, is asking whether practises such as restricting competing advertising services to collecting data from users’ Gmail inbox are having a notable impact on the industry. The issue raised doesn’t seem to be about a single instance, but the collective impact of several smaller practices. A more wholistic investigation into Google’s business might well uncover some uncomfortable truths.

“Needless to say, I found these reports quite disturbing,” the Senator stated in the letter. “Although these reports concern different aspects of Google’s business, many relate to the company’s dominant position in search and accumulating vast amounts of personal data. That is why I also write to the Federal Trade Commission (FTC) to reconsider the competitive effect of Google’s conduct in search and digital advertising.”

Google is of course becoming quite used to dealing with antitrust complaints and investigations, though it will still remain an irritation. The restriction of publishers search advertisements from competitors is currently the subject of on-going monitoring from the European Commission, though more prying eyes and prodding fingers from cumbersome regulators is hardly going to enthuse the Google management team.

This is not the first time the FTC would be taking an interest in Google, though since the last investigation in 2013, Senator Hatch has pointed to several developments in the market. Google is currently under a consent order from the agency to hold it more accountable to privacy and data protection rules, though critics have suggested it violated this order with its most recent intrusion into users lives.

Recently Google was exposed for collecting location data on users who had ticked the opt-out button on some popular apps. Google subsequently changed the wording in some T&Cs, stating apps might continue to collect data irrelevant of the opt-out, with the process of actually getting off the Google grid being an incredibly cumbersome and difficult one. The issue here is more about how important Google products are to the lives of consumers, some people simply can’t avoid the products, but this should not be a reason for the internet giant to abuse this position.

President Trump has set his sights on Google, and it seems he has the support of his party, as the Google legal team warms up for another bout with the FTC.

Qualcomm finally gets a legal win in Taiwan

The Qualcomm lawyers are building a reputation as the hardest working in the industry, though at least they no-longer have to battle the Taiwanese Fair Trade Commission.

The resolution of the dispute will come as a welcome relief, allowing the team to focus on other fronts against Apple, the European Commission and various, and the legal team have even saved Qualcomm quite a bit of cash. The deal reverses most of the $773 million fine, though it has agreed to up research commitments in the country.

“We are pleased to have reached a mutually beneficial resolution with the TFTC that puts the litigation behind us,” said Alex Rogers, President of Qualcomm Technology Licensing. “This settlement directly addresses concerns raised by the TFTC, regardless of disputed positions, and builds on our foundation of collaborative, long-term business relationships in Taiwan.

“We are happy to reaffirm our commitment to licensing our valuable intellectual property under principles of fairness and good faith. With the uncertainty removed, we can now focus on expanding our relationships that support the Taiwanese wireless industry and rapid adoption of 5G technology.”

As part of the agreement, Qualcomm will increase its research footprint in the country and has committed to spending $700 million over the next five years. In exchange, Qualcomm will stop getting fined and can continue to charge manufacturers royalties on its technology. The FTC will keep the $89 million Qualcomm has already paid, but will forget about the rest.

It will cost the chip giant cash in the long-term, but this is a minor price to pay in securing a future for its threatened licensing business. This was the major worry for investors, as it is a cash-cow, generating the majority of profits which few would want to see run dry. With Apple recruiting governments around the world in its battle against the licensing business model, this is a certainly a win for Qualcomm.

Qualcomm still faces various antitrust investigations around the world, building an expensive legal bill, but with Taiwan concluding the activities are not monopolistic or abusing market position, it is precedent which Qualcomm can point to.

DoJ appeals AT&T/Time Warner deal on grounds of ignorance

The Department of Justice has attacked a trial judges approach and methods when reviewing AT&T’s much debated acquisition of Time Warner, in it’s against the greenlight for the deal.

AT&T closed it’s $108 billion acquisition of Time Warner two days after District Court for the District of Columbia Judge Richard Leon gave his seal of approval, though the Department of Justice is not done yet. An appeal has been launchedx      , arguing competition would be distorted in the pay TV market as a result as AT&T would have a bargaining advantage over rivals, with the main focus of the appeal seemingly being directed at the Judge Leon.

“The district court held otherwise, but only by erroneously ignoring fundamental principles of economics and common sense,” the appeal document states. “These errors distorted its view of the evidence and rendered its factual findings clearly erroneous, and they are the subject of this appeal.

As you can see from the statement above, the Department of Justice seems to be claiming Judge Leon was not able to consider the long-term economic impact of the acquisition of competition, but also has found issue with the court made the ‘vast majority’ of its evidentiary rulings during sealed bench conferences and declined to release the transcripts of these conferences to anyone during the trial.

“The district court substantially constrained the government’s presentation of evidence showing that the merged entity would have greater bargaining leverage,” the appeal reads.

Part of these discussions included evidence which the government would have wanted access to, AT&T’s own analysis of the potential competitive impact of the acquisition for example, but also that Judge Leon dismissed public FCC filings made by AT&T and DirecTV explaining the potential competitive harm from vertical integration, refusing to treat the documents as relevant submissions. The Department of Justice also argues it was not given enough air-time to question economic experts or evidence presented by AT&T.

The implication seems to lean on the idea of bias. Although it has not been directly said, the Department of Justice seems to be hinting Judge Leon favoured AT&T and was not able to offer an independent evaluation of the saga.

While this is a massive acquisition, vertical deals are not unusual in the technology industry, in fact, some might suggest it is the norm for growth. With big ticket acquisitions becoming more common in the industry, some might suggest the Department of Justice’s opposition to the deal might be more political than economical. President Trump’s distain for Time Warner owned brands are no secret, a public hatred which might be fuelling the theories.