Antitrust Law Daily Apple relents, agrees to have exec testify at Senate antitrust subcommittee hearing on apps
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Monday, April 12, 2021

Apple relents, agrees to have exec testify at Senate antitrust subcommittee hearing on apps

By Jeffrey May, J.D.

Top senators on Senate’s antitrust subcommittee had urged Apple CEO Tim Cook to send a witness to testify at an April 21 hearing on app stores and mobile app competition.

Senators Amy Klobuchar (D., Minn.) and Mike Lee (R., Utah) have announced that both Apple and Google have agreed to send witnesses to a Senate antitrust subcommittee hearing on app stores and mobile app competition scheduled for April 21. The news marks an about-face for Apple, which had apparently told the lawmakers that it would not send a witness.

Apple Chief Compliance Officer Kyle Andeer is now expected to appear. In 2019, Andeer testified before the House Judiciary Committee's antitrust subcommittee on online platforms and market power.

Antitrust Subcommittee Chair Klobuchar and Ranking Member Lee had sent a letter to Apple CEO Tim Cook on April 9, in response to the company’s refusal to provide a witness and asking that it reconsider. The hearing is to focus on the impact of Apple’s and Google’s power over the cost, distribution, and availability of mobile applications on consumers, app developers, and competition.

According to the letter, Apple cited ongoing litigation as the reason for not providing a witness. Video game developer Epic Games filed a complaint in August 2020 against Apple, claiming that the technology "behemoth" uses a "series of anti-competitive restraints and monopolistic practices in markets for (1) the distribution of software apps to users of mobile computing devices like smartphones and tablets, and (2) the processing of consumers’ payments for digital content used within the iOS mobile apps." In addition, Epic Games announced in February its filing of an antitrust complaint against Apple with the European Commission alleging that Apple has breached European Union competition law by engaging in anti-competitive conduct to eliminate its competition in app distribution and payment processes.

The senators pointed out in their letter that "on the exact day Apple informed the Subcommittee that it would not provide a witness for an April hearing, the New York Times released a podcast interview in which you discuss competition issues relating to Apple’s App Store, including Apple’s pending litigation with Epic Games."

"Many other representatives of companies, both inside and outside of the technology sector, have testified before Congress in similar circumstances, and your staff was aware of the ongoing litigation when they were initially working with us to provide a witness," the senators said. "Apple’s sudden change in course to refuse to provide a witness to testify before the Subcommittee on app store competition issues in April, when the company is clearly willing to discuss them in other public forums, is unacceptable. We strongly urge Apple to reconsider its position and to provide a witness to testify before the Subcommittee in a timely manner."

On April 11, the senators confirmed that Apple had relented. Despite reports that it was simply a misunderstanding, Lee said that he was glad that Apple "changed course." He noted that it was essential that Apple and others make good faith contributions to efforts to protect and promote competition in the digital ecosystem.

"This hearing will explore whether Apple and Google are using their power as gatekeepers to charge high fees and impose restrictions that suppress competition in mobile applications and related markets, and both companies‘ participation in the hearing is necessary," said Klobuchar. "The fact that there are just two gatekeepers between consumers and the millions of online applications available for download raises serious competition concerns. These companies have the power to control how and if mobile app developers can reach app users, and ultimately, which apps become successful," she added.

Companies: Apple Inc.; Epic Games, Inc.; Google LLC

MainStory: TopStory Antitrust GCNNews

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