FTC’s Facebook investigation may stretch past election
By Cecilia Kang
Nearly a year ago, Joseph J. Simons, the chairman of the Federal Trade Commission, predicted his agency would wrap up an antitrust investigation of Facebook by the presidential election.
That goal now seems virtually impossible, according to numerous people with knowledge of the inquiry. Instead, it will probably roll into next year, when there may be a new president choosing its leader. The change could alter the commission’s priorities.
The investigation into whether the tech giant has broken antitrust laws continues to move along, said the people, who spoke on the condition of anonymity because the investigation was private. A round of document production from the company and its rivals was done in the spring, and staff members appear to be preparing depositions of Facebook’s top leadership, including its chief executive, Mark Zuckerberg, according to the people. The agency also began looking into concerns by rivals about Facebook’s recent acquisition of Giphy, a search database for short video clips.
But investigations often require multiple rounds of document requests, and the interviews will take time to complete, indicating that the agency is far from finishing its review and deciding whether to pursue a lawsuit, the people said.
The FTC declined to comment.
The handling of the case by the agency and Simons stands in stark contrast to the antitrust investigation into Google by the Justice Department. Attorney General William Barr, who like Simons was appointed by President Donald Trump, has been vocal about his desire to wrap up the Justice Department’s antitrust inquiry into Google. He is widely expected to bring a suit this year, though no decision has been made. Simons has said very little publicly about the case.
Their investigations are two of the many inquiries by federal and state regulators into Amazon, Apple, Facebook and Google. Trump has regularly complained about the power of the tech companies, and the FTC and Justice Department opened antitrust investigations into the four companies last June. Nearly all state attorneys general have begun investigations into Facebook and Google as well.
Later this month, the chief executives of those companies will testify before Congress, which has been investigating the four companies for abusing their dominant market positions to impede competition and ultimately harm consumers.
“We look forward to sharing our views about the competitive landscape, along with other technology leaders, during this month’s congressional hearing,” Facebook said in a statement, “while also demonstrating for enforcement agencies that our innovation provides more choices for consumers.”
The FTC’s investigation of Facebook is seen as a test of the agency’s ability to enforce antitrust laws in the internet economy, where market definitions and theories of violations have been hard to prove. In 2013, the agency closed an investigation into Google without charges, a decision often criticized by consumer groups.
Last July, the FTC announced a record $5 billion settlement with Facebook over violations of a 2011 consent decree over data abuses. Simons has said the fine is one of his proudest achievements as the lead member of the FTC, but many consumer advocates say the settlement did not significantly restrain Facebook’s business practices.
The FTC has not disclosed details of its investigation, but it appears the agency is partly focused on whether Facebook illegally maintained its dominance in social networking through acquisitions. The company has bought more than 80 companies over the last 15 or so years.
The agency, which has not paused the investigation during the pandemic, has conducted hundreds of interviews and collected thousands of internal documents. Many questions are related to past mergers like the $21 billion acquisition of WhatsApp in 2014 and the $1 billion purchase of Instagram in 2012, according to the people. Facebook, Instagram and WhatsApp are among the most popular apps in the world, with more than 3 billion users altogether.
The House antitrust subcommittee has also inquired about Giphy, which is used by competitors like Twitter, Snap and ByteDance’s TikTok. The $400 million merger, the rivals have argued, follows a long pattern of acquisitions by Facebook that could put competitors at a disadvantage. Giphy is not only used by Facebook’s rivals, but the company also has valuable market data about them.
Facebook has said it faces stiff competition in the United States and elsewhere, pointing to companies like TikTok. It also says that the barriers to starting a possible challenger to its business are lower than ever. Startups like Snap and TikTok have sprung up quickly over the past 10 years, building huge businesses.
“At this point in time, it’s hard to understand why it would take substantially longer to determine whether there is a case to file unless there are new complexities that have arisen,” said Gene Kimmelman, a former antitrust official at the Justice Department and a senior adviser at the consumer group Public Knowledge.
But many investigations take a long time and the agency appears to be exploring multiple issues related to the company.
In addition, the stakes are high. Simons, a veteran antitrust lawyer, may be trying to ensure any case the agency makes can last no matter who is president or chairman, Kimmelman said.