There has never been a significant antitrust ruling against a company that offers a service at a zero-price point. The Federal Trade Commission, under the leadership of Chair Lina Khan, is seeking to make history. The FTC’s amended filing on Thursday, after being thrown out earlier by Judge Boasberg in D.C. federal court, tries (in the words of a puckish Law360 headline) to “plug holes” in its original case.
Judge Boasberg noted that the original filing made a “naked allegation” that Facebook has a dominant share of a market, without defining what that market is. Lina Khan has returned from the second-hand store to try to dress this mannequin.
Reading between redactions, Chair Khan’s amended complaint claims Facebook has at least 80 percent of the “personal social networking market.” Left out of FTC’s definition are Twitter, TikTok and other popular services that allow people to make and follow friends.
Many questions emerge from this amended filing, which reads like the same-old, same-old, only with more hyperbolic language – a company with “staggering profits” that “kneecaps” competitors. Did James Patterson have a hand in writing this? The Zuckerberg Conspiracy?
What about the recent growth of personal networks on other major social media platforms? What about people with multiple accounts with multiple services? Then again, it is undeniable that Facebook has a 100 percent market share of major social media platforms founded by someone named Mark.
If Khan prevails, it will have to be under the standard still held by courts – the Consumer Welfare Standard. Maybe there’s a pony in there somewhere. But the breadth and brazenness of some of FTC’s claims in this filing hints at how reckless filings would become if the Biden Administration succeeds at scrapping the Consumer Welfare Standard altogether.