Friday, 29 February 2008
This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:
Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.
Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.
Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:
- In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
- In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.
Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).
Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.