Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/6

 effects of the Google-AdMob merger. Likewise, while the Intel settlement was not perfect, I think the Commission did a good job of exercising its prosecutorial discretion in, first, deciding to sue Intel when it did not think there was a viable settlement on the table and, second, settling the case when it became clear that consumers (and Intel for that matter) would be better served by a quick resolution, than by a drawn out Microsoft-type litigation. To be sure, I personally would have liked to have seen the Section 5 issues in the Intel case litigated to a conclusion simply to get some more clarity on the issues, but even I had to admit that the settlement that Intel agreed to was not worth rolling the dice on some interesting questions of law.

The third argument that I have heard against challenging conduct by firms in high-tech markets is that we can’t challenge conduct by firms that only have “incipient” monopoly power, as may be the case in conduct cases where a firm is on the cusp of achieving monopoly power, but the market has not yet tipped. This, for example, could have become an issue in the Google/AdMob merger. Google and AdMob were the number 1 and 2 mobile advertising networks, respectively. Apple was not in the market when the investigation began. As the Commission noted in its closing statement, however, during the investigation, Apple acquired the third largest mobile advertising network and soon thereafter unveiled its own mobile advertising network, iAd. Given that mobile advertising appears on apps—and at the time the Commission closed its investigation, approximately 85 percent of those apps were on the Apple platform—the Commission concluded that “Apple’s ownership of the iPhone software development