Aug 30, 2021

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  • Fun fact: I interned at Hamilton's newspaper, the Journal-News, while in college.

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1 big thing: Fall antitrust forecast is for a slow-moving power shift

Illustration: Annelise Capossela/Axios

The antitrust scrutiny of tech giants that began during the Trump era will only intensify this fall as Big Tech critics Lina Khan, Tim Wu and Jonathan Kanter take the lead on competition policy and enforcement in the Biden administration, Axios' Margaret Harding McGill reports.

Why it matters: Facebook, Google, Amazon and Apple face threats from federal regulators, Congress, state attorneys general and EU authorities.

  • That's four companies each being challenged from four directions: No wonder the antitrust arena can feel like multi-dimensional chess.

As the fall season looms, here's what the game board looks like.

Facebook

The Federal Trade Commission, now led by Khan, renewed its legal effort challenging Facebook's acquisitions of Instagram and WhatsApp in August. The FTC accuses Facebook of buying rivals or using anticompetitive tactics to stymie them in order to squelch competition.

The European Commission launched an antitrust investigation of Facebook Marketplace in June over concerns that Facebook's collection of data from advertisers gives it an unfair advantage.

  • The U.K. announced a similar investigation in June that also focuses on Facebook's online dating service.

In Congress, the House Judiciary Committee narrowly approved a slate of tech antitrust bills, including one that would force more interoperability and another that would bar big companies from snapping up rivals through acquisitions.

Amazon

The FTC has been investigating Amazon's business practices since the Trump administration, and is also digging into the e-commerce giant's plan to buy Hollywood studio MGM.

  • Amazon wants Khan to recuse herself from FTC's Amazon cases, given her previous advocacy of action against the company.

The European Commission accused Amazon last November of violating antitrust rules by harnessing data it collects from third-party sellers to shape the products it offers that compete with those merchants.

In Congress, Amazon faces the potential for drastic changes to its business model through the House antitrust bills that would bar it from both operating its online marketplaces and selling goods on them.

  • Amazon is warning sellers that they could bear the brunt of the cost if such legislation is enacted — and hoping those sellers will call their representatives.
Google

The Justice Department and several state attorneys general filed multiple antitrust lawsuits against Google last year, with the DOJ accusing Google of an illegal monopoly in online search and search advertising.

In Congress, Google faces threats from the House antitrust bills as well as legislation in both the House and the Senate that would curb its power over the Google Play Store.

  • State attorneys general also sued Google over how it operates its app store.

The European Commission opened its own investigation in June into Google's power in the online advertising ecosystem.

  • Previous European antitrust investigations into Google have led to billions of dollars in fines.
Apple

In Congress, Apple is facing proposed legislation in both the House and the Senate that would limit its control over how it runs its App Store.

  • Apple recently offered some concessions on its App Store policies to settle a class-action lawsuit (see below).

The European Commission, acting on a complaint by Spotify, accused Apple in April of violating antitrust laws by requiring rival music streamers to use its in-app payment system and follow other rules.

The Justice Department is reportedly also investigating Apple for anticompetitive practices.

2. eBay porn ban alarms LGBT historians

Photo: Muhammed Selim Korkutata/Anadolu Agency via Getty Images

Leaders in the LGBTQ community worry that eBay's recent ban on the sale of sexually explicit material could hurt efforts to find and preserve queer history, especially from the pre-Stonewall era.

Why it matters: As the largest marketplace for used goods, eBay has become the default trading ground to find all manner of niche items, including LGBTQ memorabilia and publications.

Driving the news: eBay announced a ban on sexually explicit content announced in May that went into effect in June, and the company has recently ramped up enforcement efforts.

  • An article last week in The New Yorker has re-upped the issue and has archivists, historians and civil rights leaders concerned.

Between the lines: Although eBay's ban applies to both straight and LGBTQ erotica, critics say it is being selectively enforced, with specific exceptions carved out for Playboy and Penthouse.

  • The exceptions list is not exhaustive, eBay says, and a couple of LGBT publications have been added to eBay's list of specifically approved titles.
  • However, much of the history of the LGBT community is captured in small publications and zines, many of which mixed erotic content with articles and other historically important information.

What they're saying: "We are talking about a part of queer history that is really hard to locate and is being saved by a small number of folks in the community," Cathy Renna, communications director for the National LGBTQ Task Force, told Axios.

The other side: eBay says its ban covers "pornographic media (sex acts)," but nudity is still allowed in both art and publications, eBay said.

Go deeper: OnlyFans suspends plan to ban sexually explicit content after outcry

3. Apple critics pan App Store changes

Although Apple is making some changes to its App Store policies and setting up a $100 million fund for small developers, critics say the terms of a class-action settlement don't meaningfully loosen the company's grip on its digital marketplace.

Why it matters: Beyond the pending suit with developers, Apple faces lawsuits from "Fortnite" developer Epic Games as well as antitrust inquiries in the U.S., Europe and beyond. Korea is also considering legislation that would force Apple to open iOS to alternative app stores.

Driving the news: In the proposed settlement, announced late Thursday, Apple does make some concessions, most notably allowing developers to use e-mail addresses collected in the app to notify customers of alternative payment mechanisms, provided those customers opt-in.

  • Apple also agreed to keep a program for small businesses and to ensure that its search engine uses specific, objective results to produce results.

Yes, but: Critics quickly seized on what doesn't change. Specifically, Apple isn't changing its overall commission structure for apps. Nor is it allowing third-party app stores or non-Apple payment mechanisms within apps.

Between the lines: Apple is making some tweaks that it can live with, possibly in hopes of forestalling courts or regulators from imposing deeper restrictions.

4. NASCAR's favorite fast foods, on your doorstep

Screenshot: Axios

Two startups are partnering to create NASCAR Refuel, a virtual restaurant brand that delivers food creations previously sold only at the racetrack.

Why it matters: A world of ghost kitchens is creating a new opportunity for themed delivery food, among other new ideas.

Details: NASCAR Refuel is a project of online ordering company Lunchbox and Virtual Dining Concepts, a pioneer in delivery-only restaurant concepts launched by Planet Hollywood founder Robert Earl.

  • Its menu includes items named for various race tracks and locations, such as the "Grid Melt" and "Tallamento Dogwich."

The big picture: Entrepreneurs and existing restaurants are trying to figure out just where the opportunities are in a world where some restaurants exist only online. Chuck E Cheese, for example, has been selling online delivery pizza under a different brand on GrubHub.

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