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Policy / DCN perspectives on policy, law, and legislative news surrounding digital content

Taking a bite out of Apple’s trustworthy talking points

August 20, 2020 | By Chris Pedigo, SVP Government Affairs – DCN @Pedigo_Chris

Given the recent congressional hearing in which the CEOs of Apple, Amazon, Facebook, and Google testified around the topic, antitrust scrutiny is undeniably intensifying. Each of these tech titans raises distinct competition issues. However, there was an interesting collision of concerns around Apple and Amazon at the hearing. It was revealed that Apple’s seemingly inviolate store terms – long questioned for favoring Apple’s own services and apps – may well bend for those who have sufficient power to wield in their negotiations.

Sometime in 2017, Apple and Amazon, two giant platform companies, struck a deal where Amazon Prime Video would be available on Apple TV and Apple products would be available on Amazon. As part of the terms of that deal, Apple would reduce its fee for consumers who subscribed to Prime Video from 30% to 15%. For existing Prime Video subscribers, Apple agreed to completely waive its normal 15% fee. The cherry on top for Amazon was that they could use other payment systems outside of Apple.

At least those are the terms of the deal according to an email uncovered by the House of Representatives Judiciary Committee. Neither Apple nor Amazon have ever publicly disclosed the deal. Given that they are the two most valuable companies on the planet, and the huge number of businesses that rely on these platforms, it is remarkable that such a deal has been shrouded in secrecy for so long. Some would point to this deal and say, “It’s the platforms’ world, we’re just living in it.” Frankly, the deal stinks of favoritism at best – and collusion at worst.

Non-negotiable?

Apple’s “non-negotiable terms” have been an issue for some time. The company charges 30% commission on any app store purchase. That fee reduces earnings potential for app developers while also driving up prices for consumers. Most merchants charge a flat fee. Apple takes 30% of the sale of, say, a $25 newspaper subscription. It also takes 30% for the sale of a $500 newspaper subscription. Thus, the more the publisher is able to charge for its service then the more Apple benefits, despite providing the same service.

Notably, Spotify has been banging the drum about Apple’s unfair practices for years now. They have even filed a formal complaint in Europe. Their concern is that Apple charges a fee for any subscription music service on their platform. At the same time, Apple offers its own competing subscription music service, which pays no fee. On that uneven playing field, neither Spotify nor any other music service will be able to fairly compete with Apple on price. The dual role of platform and competitor is inherently unfair.

Recently, Epic joined the fray with a similar complaint. Epic added a feature to its popular game Fortnite that allowed players to purchase V-Bucks in the Fortnite app. It skirted the ‌App Store‌ rules prohibiting developers from accepting payments outside of the in-app purchase system. Apparently, this was a direct salvo from Epic. Just hours after the direct payment option was added, Apple pulled Fortnite from its App Store. And Epic immediately filed suit “to end Apple’s anti-competitive restrictions on mobile device marketplaces.”

Epic released a short mocking Apple shortly after the iPhone-maker removed Fortnite from the App Store for skirted its in-app payment ‌rules.

The chorus of critics is only growing as Apple gets into more vertical business lines – news, shopping, TV, games, etc. Apple even acquired a popular weather app earlier this year.

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The dynamic in the media industry is especially interesting to consider. It’s no secret that advertising revenues for news organizations have cratered over the last decade. As a result, many news organizations have instead emphasized direct audience revenue, (e.g. subscriptions, events, etc.) which tends to better align with trusted brands than the wild west of digital advertising.

Apple also leans into consumer trust as a foundational principle of their business. For years, Safari has blocked 3rd party cookies and other tracking workarounds. Apple has long held the line on encrypted devices in an effort to preserve consumer trust in their products and services.

Paradoxically, Apple’s fees and anti-competitive practices push companies away from direct audience revenue and toward the murky world of digital advertising where a publisher doesn’t have to take a 30% haircut on all customer revenue and keeps all of the upside from its advertising earnings. In some ways, Apple’s behavior actually works to the disadvantage of companies looking to follow their lead on consumer trust.

Fair terms

At a hearing before the Committee on July 29th, Rep. Hank Johnson asked Apple CEO Tim Cook whether the terms between Apple and Amazon are available to other developers. Cook assured the Congressman that they are “available to anyone meeting the conditions.” Interestingly, at the same hearing, Cook talked about how platforms are in fierce competition for developers.

So, this week, DCN’s CEO Jason Kint, wrote to Cook to publicly call for the disclosure of the terms of this deal so that “anyone meeting the conditions” can apply for them. This is a key test for Apple: Will app developers of any size (the ones for which Apple claims to be competing) be able to get the same terms? Did Cook speak the truth before Congress? Will Apple’s behavior match its trust-based branding?

The monopolistic behavior of big tech puts a wide range of industries – not the least of which is the news industry – at a distinct disadvantage. It is laudable that EU and American regulatory bodies are digging in and uncovering these anti-competitive behaviors. Talking trust is not enough. We need to level the playing field and transparency is a critical first step.

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