MediaFile

Even when Apple is losing, it wins

The Department of Justice, as anticipated, filed suit Wednesday against Apple and five of the Big Six publishers over alleged price-fixing. Three of those publishers have entered into a proposed settlement with the DOJ, but Apple is still on the hook.

We won’t know until we know whether Apple will win, lose or settle (and now there are 16 states piling on the charges, too), but in a way it’s a sort of hapless victim. If the DOJ theory is correct, Apple did participate in a sort of conspiracy, but one driven (again, according to the allegations) by publishers that were determined to keep controlling e-book prices. In the beginning of the e-book industry it was the publishers, not Apple, that had the upper hand.

It’s important to remember the climate in which this alleged conspiracy unfolded. Amazon, against publishers’ wishes, was going rogue with $10 e-books. The mammoth online retailer – which got its start in print books but essentially created the e-book business – was widely thought to be making nothing, or next to zero, on its proprietarily encoded e-books, the better to boost demand for the Kindle.

It was classic razor-and-blades: You want to make money on the razor, so you almost give away the blades, except only your razor can hold the free blades. But in e-books it’s an even better deal. Amazon doesn’t make e-books, and they are virtual goods, requiring no inventory and little overhead in the traditional sense.

But the publishing industry was displeased with Amazon’s new $10 regime. While it was beating on Amazon to change its ways, Macmillan – whose titles at the time included the best sellers Wolf Hall and The Gathering Storm – and Apple were negotiating terms for the iPad maker’s new offering: iBooks. Apple, unlike Amazon, was willing to play by Macmillan’s – and thus the publishers’ – rules.

AT&T/T-Mobile: Will consumer intuition prove correct?

By Eleanor M. Fox
The opinions expressed are her own.

Just as I was bracing for the headline, “U.S. approves AT&T’s acquisition of its fiercest competitor subject to a few conditions,” I had a happy surprise. “U.S. Files Lawsuit to Block Merger of Phone Rivals.” In another era, this would not have been a surprise. The surprise would have been that AT&T would have had the audacity to propose a merger with T-Mobile and confidently predict that it will close (betting a 6 billion dollar break-up fee that it will). After all, US antitrust law prohibits mergers where “the effect … may be substantially to lessen competition.”

AT&T accounts for about 32 percent of the wireless mobile service market, Verizon has 34 percent, and T-Mobile nearly 12 percent. The only other possibly significant national player is Sprint Nextel, whose survival is unassured.  Thus, the merger would create the nation’s largest wireless carrier and in the post-merger world the top two would have more than 75 percent and possibly more than 90 percent of the market in the near future.   Immediately after the merger, in more than half of the Cellular Market Areas (areas used by the FCC to license mobile wireless services), AT&T-Mobile would occupy more than 50 percent.

T-Mobile is a maverick. According to the DOJ complaint, “T-Mobile has positioned itself as the value option for wireless services, focusing on aggressive pricing, value, leadership, and innovation.” T-Mobile viewed itself as “the No. 1 value challenger of the established big guys in the market.” It designed a “disruptive” rate plan. It provided the first Android handset, Blackberry wireless e-mail, national hot spot access, and a nation-wide network based on advanced 4G technology. AT&T innovated in response to T-Mobile’s “threat.”

Why consumers still lose if AT&T can’t buy T-Mobile

By Dan Frommer
The opinions expressed are his own.

The government’s opposition to AT&T’s takeover of T-Mobile seems to be about competition and price: It’s not comfortable with the idea of three carriers (instead of four) representing 90% of wireless connections, and it doesn’t want T-Mobile’s low-cost strategy being removed from the market.

Perhaps that’s worth fighting for. But here are the problems with those lines of thinking:

First, the Feds aren’t necessarily helping consumers at all when it comes to service quality.

Tech wrap: FTC seen deepening Google probe

Google will receive the civil equivalent of a subpoena from the U.S. Federal Trade Commission as part of a probe into the Web giant’s Internet search business, the Wall Street Journal reported, citing people familiar with the matter. The FTC plans to send the civil investigative demand with a request for more information, the civil equivalent of a subpoena, within five days, according to the report. U.S. antitrust regulators have been concerned about Google’s dominance of the Web search industry, and the giant Internet company has been under investigation by the European Commission since last November.

Nokia CEO Stephen Elop showed images of his company’s first phone running on the Windows phone OS. Codenamed “Sea Ray”, the phone appeared to be a near copy of Nokia’s N9 smartphone, unveiled earlier in the week.

The chairman of Yahoo voiced support for Chief Executive Carol Bartz, who has become a lightning rod for criticism as the company struggles with stagnant revenue growth and a rift with its Chinese partner. Yahoo’s efforts to mount a turnaround remain a work in progress, said Chairman Roy Bostock at the company’s annual shareholder meeting. But he said he was confident that the company was headed in the right direction and that Bartz had put Yahoo on a “clear path forward to accelerated revenue growth.”

from DealZone:

Comcast: the antitrust sequel and the M&A trilogy

If you were all twitchy with anticipation about Comcast's NBC Universal deal, just wait for parts two and three! The gathering storm over the merger in Washington and other political power points not only promises to be more riveting, but the rights to part three are already being sold to a wave of media mergers hanging on the outcome.

As Anupreeta Das reports, media dealmaking could pick up if regulators impose minimal conditions on the NBC Universal transaction. But U.S. regulatory scrutiny is expected to be heavy, and the deal could take more than a year to be cleared. The LegalTimes blog notes that even the beauty contest among regulators hoping to oversee the process promises to have many twists and turns.

That might sound like a long wait, but it's not likely to stop M&A lawyers from booking lunches and logging hours to get the balls in place to roll if the deal goes through. That kind or pressure could also work its way behind the scenes in Washington, where lobbyists will be armed with the argument that the merger will save capitalism as we know it by reigniting the dealmaking powderkeg of the early part of this century.

from Commentaries:

The European browser elections and other tech news links

Microsoft says the best way to resolve its dispute with European Union competition regulators may be an election.  The software giant spelled out late on Friday Brussels time plans for an election-style ballot to decide the question of which browser consumers use in Windows.

The forthcoming Windows 7 operating system would offer a "ballot screen" that lets consumers turn off Microsoft's own Internet Explorer (IE) and instead use rival browsers such as Mozilla Firefox, Apple Safari Google Chrome or Opera Software.

Microsoft browser ballot proposal

 There are two obvious issues with this approach: 1. Most consumers rely on default settings and rarely change their browsers once they are installed. Will more than a small percentage of users elect to change browsers at the moment they are installing Windows?

Bold steps for helping newspapers (seriously)

Another good reason to read lots of newspapers: You end up coming across all sorts of crazy ways to save the newspaper business. One of the most interesting that we’ve found so far comes from The Dallas Morning News, where Lazard executive John Chachas lays out some bold steps that the U.S. government could take to help save the press. (No, we’re not talking about financial support or “bailouts”.)

As he says in his introduction:

By the end of this year, some of America’s biggest dailies may well be run by their lenders. There is little evidence that banks would serve us well as the chroniclers of the nation’s news.

That’s because ad revenue is diving, costs are fixed, debt is threatening to shut down publishers and the papers have not yet found a way to make more money. So what can the government do? Wake up, Chachas suggests: