Submission on the final report of the Australian Competition and Consumer Commission’s Digital Platforms Inquiry

With Darcy Allen, Dirk Auer, Justin (Gus) Hurwitz, Aaron Lane, Geoffrey A. Manne, Julian Morris and Jason Potts

The emergence of “Big Tech” has caused some observers to claim that the world is entering a new gilded age. In the realm of competition policy, these fears have led to a flurry of reports in which it is asserted that the underenforcement of competition laws has enabled Big Tech firms to crush their rivals and cement their dominance of online markets. They then go on to call for the creation of novel presumptions that would move enforcement of competition policy further away from the effects-based analysis that has largely defined it since the mid-1970s.

Australia has been at the forefront of this competition policy rethink. In July of 2019, the Australian Competition and Consumer Commission (ACCC) concluded an almost two-year-long investigation into the effect of digital platforms on competition in media and advertising markets.

The ACCC Digital Platforms Inquiry Final Report spans a wide range of issues, from competition between platforms to their effect on traditional news outlets and consumers’ privacy. It ultimately puts forward a series of recommendations that would tilt the scale of enforcement in favor of the whims of regulators without regard to the adverse effects of such regulatory action, which may be worse than the diseases they are intended to cure.

Available in PDF here.

Submission to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry

With Gus Hurwitz.

Executive summary: The analysis in the Australian Competition and Consumer Commission’s Preliminary Report for the Digital Platforms Inquiry is inadequate in several ways, most notably:

  • It mischaracterises the relationship between changes in the economics of media advertising and the rise of digital platforms such as Facebook and Google.
  • Its analysis of the dynamics of media diversity is misguided.
  • Its competition analysis assumes its results and makes unsupportable claims about the division of advertising markets.
  • It is recklessly unconcerned with the freedom of speech consequences of its recommendations.
  • It fails to recognise, and proposes to supplant, the ongoing social negotiation over data privacy.
  • It provides a poor analytic base on which to make policy recommendations, as it applies a static, rather than dynamic, approach to its analysis.

There is a real danger that if the policy recommendations outlined in the preliminary report were to be adopted, Australian consumers would be severely harmed.

Available here.

Don’t Blame Voters For A Lack Of Competition Reform

Malcolm Turnbull should count himself lucky. Tony Abbott has handed his successor a remarkably fleshed out agenda for economic reform.

Shortly after the 2013 election, Abbott and Joe Hockey commissioned a series of reviews and inquiries. There was one on the financial sector, which reported in December last year. A federation inquiry and a tax inquiry are both working their way through the system.

And then there was the inquiry into competition policy, headed by the economist Ian Harper, which released its final report in March 2015.

The last major competition policy inquiry was the Hilmer Report under the Keating government in 1993. That report laid the groundwork for half a decade of competition policy reform. Hockey to his credit knew what he was doing when he commissioned a sequel to Hilmer.

It’s easy to forget all these reviews. The Abbott government was so policy shy in its last 12 months. The Harper review sunk like a stone almost as soon as it was released.

Only one of the Harper recommendations was seriously considered by the Abbott government – the so-called “effects test”, which would have made it easier to penalise firms for “lessening” competition.

The effects test divided the Abbott cabinet. It is the only major recommendation from the Harper review that would constitute an increase in regulatory interventionism. The free market right hated it. Small business minister Bruce Billson was the effects test’s biggest advocate. He was dropped from the ministry when Turnbull took over. We can speculate that this was not a total coincidence.

So when Scott Morrison announced on Friday that the Turnbull Government was going to look again at the Harper review, he was wading into a deep pool.

Morrison did not commit to the effects test either way. He did, however, specifically note the much more ambitious proposals in the Harper review: reforms to urban planning and zoning to open up the housing market, and subjecting social services to competition.

All good stuff. But it will be a hell of a challenge to implement any of these proposals. It’s true that the Coalition now has a minister for cities. But all functional power in planning and urban policy lies with state governments, who created the disastrous land supply restrictions that caused the housing mess in the first place.

Likewise, the Commonwealth can cajole and bully all it likes but the ultimate responsibility for most service delivery is in the hands of the states. Very little marketisation of social services is going to go ahead unless state governments buy in.

Last week we had an even more glaring illustration of the institutional barriers to competition reform. The Harper Review put particular emphasis on taxi deregulation and removing barriers to the ride-sharing firm Uber. But on Monday the Commonwealth’s independent competition regulator the ACCC provisionally denied the taxi industry authorisation to launch a smartphone app, iHail.

The iHail app would have allowed users to book the closest taxi from participating taxi networks. The ACCC thought that this would reduce competition in the taxi sector because it was a joint venture between a number of taxi networks. You can read their draft determination.

The ACCC’s arguments don’t even pass the laugh test. There is virtually no competition between taxi providers right now. Indeed, we’ve had a century of regulation with the express purpose of eliminating competition between taxis. The only real competition that is exists is between taxis and ride-sharing services like Uber.

But the ACCC has decided that, because the legality of Uber is still unclear, for the purposes of competition law taxis do not compete with Uber. (You can see this rather astonishing claim on page 21 of the draft determination.)

Therefore the ACCC believes that taxi companies collaborating on an app endangers the taxi market – rather than being an example of how competition from Uber is encouraging taxis to offer a better service.

Malcolm Turnbull and Scott Morrison should be looking at this draft decision closely. Not because its specifics are particularly important. The ACCC might well change its mind on the scope of taxi competition before it releases a final determination. And as the Harper review noted, even a completely deregulated taxi market reform would do little to boost total Australian productivity.

But Harper thought taxi deregulation was important because failure to do so symbolised a lack of seriousness in competition policy. The ACCC draft determination is important. It’s a warning. We now have a legal framework where firms have to request permission from the government to innovate.

In an influential short book, the American technology scholar Adam Thierer argued for “permissionless innovation”. Thierer argues that if we want take advantage of technological progress, we must remove the approvals, authorisations and clearances that innovators and entrepreneurs need from government before they bring ideas to market.

For years commentators have complained that the era of economic reform is over. In the most common version of this story, any attempt to restructure the Australian economy will be scuttled by a hostile Australian public. This is really just blaming voters for the failures of the political class.

In fact, what is more likely to hold back economic reform is government itself: the network of interests and institutions that believe their job is to supervise the innovation economy.

Why Is The Agriculture White Paper Gunning For Supermarkets?

On Saturday Barnaby Joyce and Tony Abbott released the long-delayed Agricultural Competitiveness White Paper.

The Government feels that farm businesses, “especially those of a smaller scale”, are vulnerable to “anti-competitive market behaviour or unfair market practices”.

So they want to establish a new commissioner within the Australian Competition and Consumer Commission to make the ACCC more “farm savvy”.

Yes, I admit this all sounds pretty dull and bureaucratic.

But official government white papers have to be coy. We don’t. The Abbott Government is really talking about a regulatory crackdown on Coles and Woolworths – the twin spectres haunting Australian retail and agriculture.

The journalist Malcolm Knox describes the two companies as “Supermarket Monsters”. They are anti-farmer, anti-competitive, oligopolistic, bullying, overbearing, and so forth.

Indeed, no hyperbole has been undredged in the rhetorical battle against Coles and Woolworths. Last year Bob Katter even compared the installation of traffic lights in a north Queensland town near a Woolworths outlet to the “Norman Conquest”.

How did discussion over the relationship between farming and grocery retail in Australia become so unhinged? And why is the Government indulging these fantasies – pushing the ACCC into a battle with Australia’s supermarkets?

This is what happens when agrarian socialists team up with foodies.

We’re in the middle of a sustained price “war” between the two major supermarket chains in Australia. The battle is mostly waged around private labels – the supermarkets’ own branded cheap products that they have more efficiently integrated into supermarket supply chains.

The opening salvo of this war was the announcement by Coles in January 2011 that it was going to cut its private label milk down to $1 a litre. (It’s tempting to write the “infamous” announcement, but the idea a basic consumer product price cut could be both famous and bad just shows how batty the supermarket debate has become.)

That was four years ago. Since then, the retail contest has been joined by Aldi and Costco, two firms pushing the prices of groceries lower again. Aldi’s German cousin, Lidl, the fourth largest retailer in the world, is set to enter Australia as well.

Changes to grocery markets have been single-mindedly in favour of consumer interests. Cheaper goods, more availability, more competition, and, with the increasing availability of online shopping, incoming technological change. All good things.

Is this price and service competition hard on producers? No doubt. But the Agriculture White Paper gives the political game away. The supermarket’s much fretted over market power and industry dominance is in comparison to the diverse and diffuse farming sector: “The relatively small, independent nature of farming means that farmers can be at a commercial disadvantage relative to buyers.”

If a power imbalance is the problem, the solution surely is to continue the consolidation of farm operations that has been going for decades. Yet, as Bernard Keane pointed out on Crikey yesterday, the White Paper is so enamoured by the romantic image of the family farm and the Nationals heritage that it couldn’t encourage such corporatisation.

This is the true heart of the supermarket debate: a romantic vision of small family farming clashing with consumer demand for ever cheaper and more convenient groceries.

Anyway, if you remember it wasn’t so long ago anti-supermarket activists were concerned grocery prices were too high.

In 2008 Kevin Rudd launched GroceryChoice – Labor’s policy to tackle the Coles and Woolworths menace. GroceryChoice was a website that compared the prices of a basket of goods at the different outlets. The goal was to help consumers navigate the apparently turgid waters of retail competition.

The irony was that according to GroceryChoice’s calculations, sometimes Coles was cheaper than Woolworths, sometimes Woolworths was cheaper than Coles, usually Aldi was cheapest than either of them … but if you wanted to save on your grocery bills you should almost never, ever, shop at an independent supermarket.

So, yes, GroceryChoice empowered consumers. It empowered them to rely more on Coles and Woolworths. This was a classic populist own goal. The website was shut down within a year.

Now the concern has seamlessly changed from Coles and Woolworths being too expensive to a concern that Coles and Woolworths are too cheap.

In his book Supermarket Monsters, Malcolm Knox writes about supermarkets in trenchant, morally-laden terms. He suggests the Australian population is either wary or openly hostile to Coles and Woolworths. Those who do not shop there are “conscientious objectors”. He throws every charge he can at the two companies, hoping some will stick.

In this interview with ABC’s PM program, Knox clarifies his basic economic objection: having pushed prices down, Coles and Woolworths might one day push consumer prices up. They might beat all those new competitors, corner the market, abandon their cutthroat competition, and decide to jointly exploit customers. One day $1 milk will be hiked to $5 milk.

Speculating about the future is a fun parlour game. Yet right now, Australia has what looks like an incredibly competitive and dynamic grocery sector pushing prices down, attracting new entrants, and obviously benefiting customers.

The idea that the Abbott Government wants to unleash the competition regulator onto this unambiguously competitive market is absurd.

Splitting Telstra Is Not The Right Move

Last week, the US Federal Communications Commission abandoned its decade-long experiment with forced access sharing. Under this process the four so-called “baby bell” phone companies were required to open their phone lines to competing broadband retailers, rather like Telstra’s ADSL must be opened to its rivals.

As the former chief executive of US West, the baby bell that served the US Midwest, Sol Trujillo is intimately aware of the harmful effects that forced access policies have on telecommunications services. In the name of competition, access requirements also disingenuously known as unbundling make an entire industry subservient to regulators, rather than the market and consumers.

Telstra’s last attempt to change prices for high-speed internet, involving the introduction of the entry level $30 per month price early last year, was subject to vigorous action by the Australian Competition and Consumer Commission and Telstra’s retail rivals seeking to have the price increased.

This was punishing the customer to preserve the competitors and was just as odious as the policies that US regulators have unanimously decided are harmful to true telecommunications competition.

Telstra’s decision last year to lower the cost of home broadband should have been welcomed around the country. Instead, a pricing arrangement which resulted in a massive surge in ADSL uptake was greeted with threats of a multimillion-dollar fine and a brutal series of condemnations in the press.

Telstra’s basic broadband pricing has not changed in 1 1/2 years, probably as the result of lessons learnt from last year’s ugly fight. Such stagnant pricing in such a dynamic sector is not the sign of healthy competition.

The most harmful effect of forced access regulation is on infrastructure. The telecommunications market does not have the same stability as electricity or water; the steady progression of new communication technologies requires significant infrastructure investments to meet consumer demands.

It is clear that allowing competitors to leech off Telstra’s copper wire network at a nominal rate that ensures their profitability, means that there are poor incentives to invest in newer, more advanced infrastructure.

To argue that the capital required to build such a network is so large that no company would possibly do so is fallacious. One need only look at the sudden explosion in aviation competition with the advent of Virgin Airlines to recognise this fact.

In telecommunications we can be confident that this will emerge in the US now that price shackling has been abandoned. Not only do the existing regulations dissuade young competitors from developing new services, but they give Telstra a significant disincentive to upgrade lines. This point was made clear in a Senate committee earlier this year in a discussion on comparable broadband speed.

Telstra’s reluctance to roll out fibre optic cable to the home a technology which will rocket broadband speeds to among the best in the world is based not upon a lack of desire to do so, but a fear that the ACCC will force the company to open its lines at a rate which could make the roll-out a poor investment.

This is the regulatory environment Trujillo faced in the US, and this is the one he faces in Australia right now. However the recent developments here have not followed the positive developments in the America.

While recent Australian debate has focused on the National’s rent-seeking demands for future-proofing, it is the operational separation of Telstra into a wholesale and retail division which threatens to be the legacy of the coalition’s compromise.

If it goes through as planned, separation will lock in the regressive forced access regulation. Telstra Wholesale will be no more than a province of the ACCC empire controlled not by consumer demand but by an ACCC managed cartel of parasitic competitors trying to suck concessions from the one provider of significant communications capital that the country has.

The timing of the US decision is fortuitous for the federal government and those who will draw up the new arrangements for the final sale of Telstra.

We can look to the US, and their momentous decision to end this regulatory arrangement, for ideas on how to progress.

Laws Against Concentrated Media Ownership Hurt, Rather Than Help

The Australian reports today that the Australian Competition and Consumer Commission has begun its inquiry into Fairfax’s acquisition of Southern Cross Broadcasting’s TV and radio assets.

The ACCC has been given a greater role in the regulatory adjudication of media mergers after Helen Coonan’s partial deregulation of ownership law in September last year.

For consumers, these reforms should have been welcome. Laws against concentrated media ownership hurt, rather than help, the cause of media diversity.

Media ownership laws rely on a crude, and possibly erroneous, model of the relationship between ownership and content diversity. Their premise is simple: concentration of ownership is a proxy for concentration of content.

But a growing body of empirical evidence suggests that this link is not as well established as the critics of media deregulation might assume.

Perhaps counter-intuitively, concentration of ownership can increase media diversity. A reduction of the number of owners in a newspaper market often leads to an increase in product differentiation. Firms in these situations find it is more profitable to lure consumers with new products than by trying to ape established ones.

Another classic example here is subscription television, where a single firm offers consumers dozens of highly diverse channels. But the diversity available on pay TV indicates a source of the dull homogeneity of much of Australia’s television – the protectionist management of the broadcasting spectrum. If we are serious about encouraging media diversity we should be at the very least liberalising the number of television licences.

Across the media sector, firms are searching for new business models. The announcement that PBL Media would be taken over by a private equity firm indicated just how aware ‘old media’ firms are of their new competition and their audience’s changing media consumption patterns.

In this context, media concentration and consolidation might more usefully be seen as a ‘circle the wagons’ strategy by firms in traditional markets. As audiences fragment, many firms feel that they have to expand their empires just to keep up.

This may not end up being a successful strategy. In the United States, a wave of consolidations a few years ago has been followed by widespread break-ups and divestitures.

But in such a competitive environment, these firms need to be allowed to experiment with business structures as much as possible. Applying economy-wide rather than sector-specific competition law to the industry is a step in the right direction.

Hands Off Software, Samuel

Nothing gets you more attention than picking on the cool kid at school.

The Australian Competition and Consumer Commission is arguing that Google is responsible for the content of the advertisements that accompany its search results, and that it is not sufficiently obvious that they are ads.

The ACCC alleges that ads that appear to link to one firm, but in fact link to another firm, are in violation of trade practices law.

But Google already has its own dispute resolution process that adequately resolves these problems. This machinery is not there because it wants to satisfy regulatory authorities; it’s there because it is part of the search engine’s commercial attraction to ensure its links and advertisements are credible and not likely to mislead searchers.

Google’s reputation rides on the integrity of its search results. The company may seem like it owns the internet, but the history of software and computing shows us that such domination is easy to lose. Users will migrate if they stop trusting Google.

The ACCC’s second contention has more important implications. The regulator argues that Google’s ads are inadequately distinguishable from its search results.Again, this argument is easily dispensed with. Not only does Google highlight and separate ads from search results, it also clearly labels them as sponsored links.
Furthermore, it is easy to tell where links are directed – Google publishes the full address to help its users navigate their searches.
This is in addition to the status bar visible at bottom of modern web browsers, which also indicates the destination of any given link.

Internet users are fairly sophisticated at determining the validity of individual sites. They have to be – the deluge of email spam has made computer literacy a requirement.

Even so, if a search engine wanted to pepper its results with ads, it should not be against the law to do so. Publications mix paid advertisements and editorial content shamelessly, but do not find themselves the target of high-profile ACCC lawsuits and media releases.

The biggest challenge modern software companies have is developing business models that can actually turn a profit. Reckless regulatory intervention will limit the ability for firms to experiment with ad-based revenue models.

The action against Google is a symptom of a deeper struggle that government and regulators are having with the implications of digital technology and the internet. Rather than seeing the paradigmshifting opportunities of online services, they are merely being seen as a further opportunity to expand the turf of the regulator.

ACCC chairman Graeme Samuel has repeatedly argued that online sporting content provided exclusively to Telstra BigPond subscribers could constitute a monopolistic bottleneck to competition. Never mind that this is a whole new service developed entrepreneurially by Telstra, and the rights to provide this content to subscribers had been ascertained by fair competition on the open market. Nor that Optus and other service providers are also seeking to provide unique content of their own.

The regulator has announced that this is the first action of its type internationally. But this is not entirely the case. By arguing that Google is responsible for the content of its ads, the ACCC joins individuals and firms who sue the search engine for merely linking to objectionable material.

Such activity is becoming common internationally – rather than suing the site or sponsor of the offending material, litigants target the much higher-profile Google. This ensures publicity and targets an entity that is wealthy enough to pay should the suit be successful.

There is a further worrying implication of this action. The software industry used to be clearly separate from the regulatory morass that rules other industries. The industry moves astonishingly fast, has no entry barriers and is characterised by the sort of innovation and entrepreneurial action that renders regulatory oversight redundant.

But in Europe and the United States, the potential expansion of regulation to online services has forced tech companies to set up lobbying divisions in Brussels and Washington staffed with lawyers and government relations specialists.

The last thing the industry needs is to compel software engineers to sit down with regulators before they can offer new services. To do so would be to invite the same regulatory stagnation that has enveloped telecommunications.

ACCC Paying Lip-Service To Innovation

Australian Competition and Consumer Commission chairman Graeme Samuel now argues that content is the determining factor in whether a media company is being anti-competitive. (“Consumers the key to media revolution”, AFR, November 18).

Samuel says that the bar for monopoly has been substantially lowered. Now all it takes is an assessment that a company is acquiring too much premium content – sporting content, obviously, but movies as well. This judgement will continue to change as tastes do. He mentions tennis, AFL, rugby and cricket, but not soccer, which is now about as premium as you can get.

But it is the capacity for companies to make exclusive content deals that encourages entry into new, developing markets. If the ACCC punishes companies that it deems too enthusiastic in offering value to consumers, it will only make these consumers think twice about adopting the new technologies at all.

Why would the ACCC warn companies off experimenting with new products and services? Samuel may think that he is protecting competition, but by arbitrarily punishing companies he is punishing consumers and stifling innovation.

Such arguments as this betray the fact that the ACCC is merely paying lip-service to the possibilities of new media, rather than understanding its revolutionary consequences.

ACCC Should Be Good Sports

The chairman of the Australian Competition and Consumer Commission, Graeme Samuel, argues that if Telstra acquires the exclusive right to broadcast popular content on mobile phones then its competitors will be discouraged from investing in modern infrastructure. This is not the case.

By allowing service providers like Telstra the capacity to provide exclusive content to their customers, it encourages other networks to develop similar offers.

Optus already provides video news to their mobile customers.

Other phone and internet companies are contentedly building new infrastructure and developing new technologies to provide better, higher quality services to consumers. In the drive to attract more consumers, companies are forced to be more creative and more innovative.

Samuel argues that if Telstra is allowed to provide its customers with Australian Football League statistics and replays then this may cease. This is disingenuous at best.

To pick on one type of entertainment, popular though it may be, and then decide that it is suddenly a public good seems absurd. Exclusive sporting content is not the barrier to third-generation telecommunications competition that the ACCC thinks it is.

Leave sporting rights alone.

Nothing would encourage the competition that the ACCC is sworn to defend like letting the providers actually compete.