If this issue cropped up in Europe, I could bet a thousand horses that the EC Commission will be far more likely to clamp down on the deal and hold that the “exclusivity” agreement between Apple and AT&T violates EU competition law norms. The EC is much more intrusive than any other competition authority that I know of—owing in large part to its “pro consumer” focus.
Unfortunately, in India, till such time as our bureaucratic and political bottlenecks clear up, we may not see the coming into force of the new competition regime. But it’s certainly worthwhile to reflect on this issue and see if the India’s Competition Act which has some provisions that are broadly similar to Article 81 and 82 of the EC code will be interpreted in a manner similar to cases in the EU. In other words, should we create an “efficiency” or business justification exception to the normal rule that exclusive agreements have a tendency to foreclose competition in the market and should therefore be voided. If we come down too strictly on exclusive tie up’s, would this hamper the rate at which innovative technology products are introduced in the market? Anyway, below are excerpts on the congress hearings:
“Congress’s iPhone hearing starts tomorrow.
Its official title is “Wireless Innovation and Consumer Protection,” but “Really, they’re the iPhone hearings,” says public interest lobbyist Ben Scott. The House Subcommittee on Telecommunications and the Internet is expected to consider the future of cellphone and wireless data communications, including the “unbundling” of cellphones from their carriers, while activists are pushing for a new wireless data network in newly-available spectrum. Both developments could ultimately affect AT&T’s exclusive carrier status with Apple.
“We need to unbundle phones,” according to Committee Chairman Ed Markey. He told The Street that “The consumer should be king and should be able to take their device with them, to whichever network provider is offering them a better deal… “
Wireless carriers find their phone and internet services facing new scrutiny after AT&T’s exclusive carrier deal with Apple’s iPhone. “Congress doesn’t need to run a hearing on whether the iPhone is the coolest, shiniest gadget on the market…” says Scott. “The reason they’re having a hearing is because the iPhone…is going to set the mold. This device and how it’s treated by the Congress and the regulators in Washington is going to determine how we access the internet from now on with every device that follows in the iPhone’s footsteps.”
Markey set the tone for the debate, telling The Street that “the more portable these devices are, the more innovation we’ll see.”
Adding juice to the debate is the upcoming release of new airwave spectrum in early 2008. Reed Hundt, former chairman of the FCC, notes news reports panning the iPhone’s internet service from AT&T as “pokey” and “excrutiatingly slow”. He’s calling for the creation of an open national data network, five times faster than AT&T’s EDGE, as part of the airwave auction — “a new, independent national, high-speed, fourth generation, wireless broadband network available to Steve Jobs and all other entrepreneurs at very low cost.” Noting this auction is “the last of its kind” — a one-time vacancy as TV stations switch over to a different digital spectrum — he warns that the carriers could launch a pre-emptive purchase to eliminate competition for a lifetime. In a nod to Apple, he calls his proposal “a great chance for the new FCC…to accomplish something insanely great. “
The current chairman of the FCC agreed yesterday – at least with the need for
an open network. “Whoever wins this spectrum has to provide [a] truly open broadband network…,” he told USA Today, “one that will open the door to a lot of innovative services for consumers.”
The same day the CEO of Working Assets continued its attack on the “closed network” model behind AT&T’s exclusive iPhone deal. “Perhaps unfairly, we tend to think of the consumers of Apple products as being a bit more progressive than those who stick to the Microsoft world. We think that they should know that their use of the iPhone will enrich and entrench precisely those forces that are seeking to eliminate the very soul of the internet.”
It’s a unique moment in time, argues blogger Matt Stoller. “Right now, there are a few confluent events that are inspiring a lot of debate around the public airwaves, and it all hinges on the iPhone and its immense significance.” To inspire a discussion, he’s recorded a five-minute video presentation by public interest lobbyist Ben Scott.”