For my esteemed readers, Apple's lobbying activity is relevant with a view to mobile ecosystem regulation and/or (depending on a given reader's priorities) patent policy. CNBC reports that "Apple ramped up its lobbying spending last year, increasing its total for the year by 44% compared to 2021, according to public disclosures." For 2022, Apple disclosed a total D.C. lobbying spend of approximately $9.4 million. Is that new total--which still trails behind a few other Big Tech companies--a meaningful number? Absolutely positively not.
Let's please take all of those disclosures with a grain of salt. Total transparency in lobbying is utopian. A lot of what's going on in the industry is in a gray area and not strictly lobbying.
While those transparency rules capture only a subset of the actual spend, one can still infer something from relative changes, based on the--unfortunately unverifiable--assumption that a company's degree of transparency hasn't changed too much during the same period.
On the subject of plausibility, in Apple's case it's easy to see that 2022 was a critical year: Apple sought and managed to dissuade Congress from adopting the Open App Markets Act (OAMA). I still believe the OAMA can be resuscitated. In principle, even the Republican House majority acknowledges that something must be done to protect app developers against the abuse that is happening on a daily basis. But Republicans would rather not empower the federal government too much, especially not with Lina Khan at the helm of the FTC. In a Wall Street Journal opinion piece, former Attorney General William Barr (appointed by, but never in thrall to Donald Trump), argues against an overhaul of the antitrust laws, yet he is right that "case-by-case antitrust litigation alone won't rein in Big Tech" and that "a coherent response to the multifaceted problems caued by Big Tech's dominance" is needed.
In Europe, App Store-specific rules are going to make an impact, though in 2024 at the earliest: the EU's Digital Markets Act (DMA) takes time to be implemented, and in the UK, similar legislation often referred to as the DMU (the Competition & Market Authority's Digital Markets Unit, which will enforce the envisioned law) is also approaching fast (meanwhile, Apple is challenging--on a basis I consider reasonable--a market investigation reference by the CMA). But the U.S. is Apple's largest market, and since Apple unilaterally imposes on app developers a forum-selection clause in favor of the Northern District of California--where it then argues that it is immune under the Foreign Trade Antitrust Improvements Act (FTAIA)--there is another reason for which it is the single most important jurisdiction for Apple.
Enforcement in jurisdictions such as Brazil has the potential to make a difference. For example, I believe that South Korean lawmakers, who pioneered mobile app store legislation (which is separate from the antitrust enforcement action against Apple in the same jurisdiction), encouraged other legislatures (such as in the EU) to take similar steps. Also, we need initiatives--regulatory as well as legislative, and litigation, too--in all of the major markets because chances are that Apple will not stop its abusive conduct wherever it is not required to do so under the law. Google, by contrast, may at some point prefer to have one set of rules around the globe, though it's definitely not there yet.
Apple's U.S. lobbying spend is not limited to the federal level. They also had to fend off various state law initiatives concerning the App Store as well as the right to repair. The numbers CNBC's article refers to are exclusive of state-level lobbying.
But even at the federal level, Apple spends a whole lot more than that sub-$10M amount. ACT | The App(le) Association alone has a budget of about $10M per year and is largely funded by Apple as Bloomberg's Emily Birnbaum uncovered. Some of that is obviously spent at the state level and in Brussels. Nevertheless, it shows what is actually being spent on lobbying.
Some of the soft costs are also huge. Reportedly, Tim Cook had a number of meetings on Capitol Hill. If one looked at all of the hard and soft costs involved, his meetings alone have likely cost Apple more than the $9.4 million they reported.
It's time for some serious federal antitrust enforcement action against Apple. The DOJ may want to wait for the Ninth Circuit opinion in Epic Games v. Apple, which could be very helpful with a view to market definition, but whoever loses will appeal that decision to the Supreme Court and, potentially, petition for a rehearing en banc before doing so.
The DOJ is claimed to be about to file a second Google lawsuit, which will focus on ad tech (the first one will go to trial later this year). I'm not against that, but I'm not enthusiastic either because I don't like the optics of Google being sued for a second time before Apple gets slapped, whic his why I said the following on Twitter:
The DOJ may be able to prove harm to the competitive process in this context, but the mich bigger issue facing the advertising industry is App Tracking Transparency.
— Florian Mueller (@FOSSpatents) January 24, 2023
Why is the DOJ bringing a second Google case before a first Apple case? https://t.co/dLCk38bvPL
