Category: Competition

  • From the FTC’s Shade to Vance’s Sunshine in Paris: Are the Feds Turning Over a New Leaf on AI?

     

    With major developments taking shape at a rapid pace in artificial intelligence (AI), including DeepSeek’s $6 million breakthrough, a new reality is dawning for tech markets.  Experts and investors take away a variety of lessons, from the straightforward conclusion that more is now possible with less in AI—to demonstrably inaccurate takes, such as that there is insufficient competition in AI. The latter view dominated the Biden Administration’s antitrust approach to AI markets, and early indications suggest “Big Tech” is still in the federal government’s crosshairs under President Trump. However, AI optimism may yet overtake the more interventionist inclinations inherent in the pervading populist agenda, suggesting small businesses in these markets may benefit from an era of growth and the flexibility to innovate on robust platforms. Perhaps most heartening are the views articulated in Vice President JD Vance’s speech this week in Paris, where he argued that “to restrict [AI’s] development now will not only unfairly benefit incumbents in the space, but it would also mean paralyzing one of the most promising technologies we have seen in generations. . . . The development of cutting-edge AI in the U.S. is no accident. By preserving an open regulatory environment, we’ve encouraged American innovators to experiment and make unparalleled R&D investments.”

    Here, the VP talked mainly about AI-specific regulations and liability regimes that the European Union (EU) is considering. However, his comments apply similarly to interventions rooted in competition or antitrust law and policy. In the United States, federal officials have recently struggled to understand the meaning of advancements in AI and what to do about the potential risks they present. In the process, they also underappreciate the benefits of investments in AI while overestimating the risks they pose to competition.

    More than its demonstration of technical progress, DeepSeek vividly illustrates the triumph of innovation over constraints—be they access to inputs, availability of capital, or run-of-the-mill regulatory hurdles—when markets are truly competitive. But leave it to the government (and, to be fair, investors) to never have seen something like this on the horizon. The Federal Trade Commission’s (FTC’s) report on Partnerships Between Cloud Service Providers (CSPs) and AI Developers is one example of how federal officials have tended to underestimate relatively under-resourced competitors and overestimate the risks to competition of investments by large CSP incumbents. Although the FTC’s “areas to watch” in Section 5 of the report are not binding regulations or enforcement actions, they appear to try and undermine investment by CSPs by focusing on potential competition constraints that are increasingly unlikely to create antitrust problems as events unfold in AI markets.

    The report warns that CSP partnerships with AI developers could “affect access to certain inputs, such as computing resources and engineering talent.” Specifically, Microsoft and OpenAI, for example, agreed that Microsoft would have exclusive rights to build computing capacity for OpenAI (subject to caveats) in exchange for billions of investment dollars. Seeing a smaller player in OpenAI making a real tradeoff by conceding exclusivity to Microsoft, the FTC perceived a need for the government to ride to the rescue, even if only via threatening subpoenas issued under its 6(b) authority. Ultimately, this seemingly permanent exclusive arrangement turned into a “right of first refusal” for Microsoft, allowing OpenAI to look elsewhere without technically being in breach. Simultaneously, DeepSeek upended input cost assumptions by providing roughly equivalent services to OpenAI’s GPT-4 at for 32.8 times cheaper than what OpenAI invested.

    These events have illustrated that we have no idea what effect the drastic leap in computing efficiency will truly have, except that competitors will jockey as swiftly as possible to capitalize if allowed to do so. Summarizing all of these unknowns by focusing only on the ways competitors could restrain future competition needlessly steers policymakers toward intervening in these markets to remedy potential, possible (but rather unlikely) future market failures.

    Despite a lack of access to the latest chips and infrastructure or the capital necessary to even pay for them if they were available, DeepSeek was not well positioned to succeed and did so despite its predicament. The development challenges AI antitrust hawks’ assumptions. In awe of the size and power of large CSPs, the FTC appears to have forgotten that their efforts to secure exclusivity are readily assailable as efficiency advancements and other market realities shift the foundations of our collective assumptions. Incoming FTC Chairman Andrew Ferguson concurred in part with the decision to issue the report but dissented with respect to Section 5. The “limited, brief nature of the study should foreclose the drawing of broad conclusions about the AI industry and its future . . ..” Ultimately, a view like this admits that the government is not omniscient, presaging a return to former FTC Acting Chairman Maureen Ohlhausen’s “regulatory humility” ethos. If it extends broadly to the federal government’s antitrust philosophy in tech markets, especially on AI, it is good news for small businesses in the app economy.

  • Always Be Filing: ACT | The App Association Filing Activity January 2025

     

    Throughout the year, our policy team submits filings with government bodies worldwide to advocate for a regulatory environment that inspires and rewards innovation. From issues around regulating artificial intelligence to digital trade, our team is ACTive on a wide range of topics that could have a positive or negative impact on our small business members driving the app economy. Below is a roundup of our filings from around the globe this past month.

     

    Title: Targeted Consultation on Internet Governance

    Entity: European Commission DG CONNECT

    Jurisdiction: European Union

    Summary: The European Commission launched a consultation on the development of an EU strategy on the multistakeholder governance of the internet. The App Association responded to the EC’s survey, highlighting the benefits of a free and open internet and the threats to the digital ecosystem that could arise from the Digital Markets Act (DMA) and other policies.

    Filed: January 14, 2025

    Title: Second Draft EU General-Purpose AI Code of Practice

    Entity: AI Office

    Jurisdiction: European Union

    Summary: The App Association submitted feedback to the EU AI Office’s second draft of its EU general-purpose AI Code of Practice. In its comments, the App Association urged the AI Office to make obligations under the code scale with the size and risk of artificial intelligence (AI) applications and to simplify compliance for small and medium-sized enterprises (SMEs).

    Filed: January 16, 2025

    Title: Subsidy Call for Artificial Intelligence

    Entity: Autoridade Nacional de Protecao de Dados (ANPD)

    Jurisdiction: Brazil

    Summary: The App Association filed responses to ANPD ‘s survey about the application of Brazil’s general data protection law to AI services, highlighting the importance of risk-based approaches and technology-neutral application of privacy regulations.

    Filed: January 24, 2025

    Title: 2025 Special 301 Review, Public Hearing and Request for Comments

    Entity: United States Trade Representative (USTR)

    Jurisdiction: United States

    Summary: The App Association joined a multi-stakeholder letter responding to USTR’s request for comments as part of its Special 301 Review of international trade barriers. The letter discusses the importance of standard-essential patents (SEPs) and the need for U.S. trade partners to adopt policies that fight back against SEP abuses.

    Filed: January 27, 2025

    Title: ACT | The App Association’s Public Interest Statement in Case No. 337-TA-1380 (Nokia v. Amazon)

    Entity: United States International Trade Commission (USITC)

    Jurisdiction: United States

    Summary: The App Association filed a public interest statement with USITC in its ongoing proceedings regarding the Nokia v. Amazon case. The App Association urged USITC to fully consider the potential harmful impacts on the SEP licensing landscape and U.S. competitiveness of issuing an exclusion order in the case.

    Filed: January 30, 2025

    Title: Comments of ACT | The App Association to CRC Regarding ‘Study on the role of “Over the Top” OTT services in Colombia – 2024’

    Entity: Comisión de Regulación de Comunicaciones (CRC)

    Jurisdiction: Colombia

    Summary: The App Association filed comments to Colombia’s telecommunications regulator CRC’s study of the role of “over the top” services in the country. The App Association warned in particular of the unintended consequences of creating new fees for OTT providers, as those costs would likely be passed on to users of those services, including app developers and their customers.

    Filed: January 31, 2025

    Title: ACT | The App Association’s Response to the European Commission regarding its Consultation on the Single Market Strategy for 2025

    Entity: European Commission

    Jurisdiction: EU

    Summary: The App Association submitted comments to the European Commission as part of its consultation on its strategy for the European Single Market in 2025. The App Association highlighted ways to promote SME innovation in the Single Market, strengthen investment and capital markets, optimize the EU’s intellectual property framework, harmonize rules for emerging technologies like AI, preserve market access and competitiveness for SMEs, and enhance digital infrastructure and connectivity.

    Filed: January 31, 2025