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C.17(1.9)/0997 2011.07.26 the Secretary, Competition Commission

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C.17(1.9)/0997 2011.07.26 the Secretary, Competition Commission C.17(1.9)/0997 2011.07.26 The Secretary, Competition Commission of India, 18-20, Kasturba Gandhi Marg, New Delhi 110 001 Dear Sir, Preliminary Information regarding Facebook and Facebook Credits for violation of the Competition Act, 2002 Greetings from CUTS! Enclosed is a preliminary information report filed by CUTS regarding Facebook Inc and its virtual currency Facebook Credits. As explained herein, CUTS believes that Facebook can potentially engage in anticompetitive and unfair business practices in the market for virtual goods purchased in social games through its Facebook Credit terms in India and therefore its activities in this regard need to be investigated by the CCI. We urge the Commission to undertake a detailed investigation though we do hope that in fact Facebook is not engaging in such unlawful activities and will not do so in future. Unfortunately, as a company does in one country, it is likely to do in another as well especially in such countries where antitrust enforcement is not very effective. Another advantage of early investigation may be deterrence; once they realise that in fact enforcement is likely to be as strict as it is in the USA or the EU, they are likely to be much more wary of undertaking such practices here. In fact this is certainly one advantage for multinational companies to want to come to India, because they can escape the strict antitrust laws in their own country. For reference, we enclose also the complaint filed against Facebook by the advocacy group Consumer Watchdog, USA against Facebook which is self explanatory. Kindly acknowledge receipt and oblige. Thanking you, Yours faithfully, Pradeep S Mehta Secretary General PRELIMINARY INFORMATION REPORT BY CUTS 1. CUTS submits this preliminary information re the potential anticompetitive terms and impact of Facebook Credits, a revamped virtual currency system recently announced by Facebook, the world largest social networking company, and now the largest social networking site in India, having 20.9 million active users, as of July 2010 (according to Comscore, a Nasdaq listed company). The revised Facebook Credit terms have taken effect in India as in the rest of the world from July 2011. Under the new contractual arrangements, game developers using the Facebook platform must (a) exclusively utilise Facebook Credits in the operation of their games; (b) such developers must agree not to charge lower prices to consumers outside of Facebook and (c) game developers must pay a 30% service fee for all Facebook Credit purchases. 2. Social gaming is a term used to describe game applications within social networks such as Facebook. Third party applications on Facebook are free to users. Application developers generate revenue through a variety of means. Social game developers generate revenue through users who purchase “virtual goods” and “in game currency” during game play. Virtual goods are intangible objects purchased for use within a social network or social game. The market for virtual games in India is expected to explode in coming years along with the growth of social networking which has been growing at a very fast pace in India as well, from 32.099 million active users in Dec 2008 to 39.562 million in July 2010. 3. Social gaming in India is potentially going the mainstream cinema and television way with tie ups with celebrities etc being worked into social games. At present however, the biggest Indian social game developer is Zapak. Zapak launched their gaming portal “Zapak Games” on Facebook in July 2010. At launch the portal contained over 30 games which could be accessed via Facebook. The portfolio consisted of casual games including sports, arcade, strategy and action games like Ice Hockey, Street Soccer, Speed Racing or School Cricket. 4. Developers like Zapak as also foreign game developers who open offices in India may have to use Facebook Credits. However, Facebook has special arrangements with Zynga, the largest developer of social games in the US, which is another possible anticompetitive activity of Facebook. Now Zynga has recently opened an office in India and to the extent that such special anticompetitive arrangements are being followed in India as well Facebook may potentially be making other infringements of the Competition Act, potentially Section ../.. 5. Since Facebook now has a dominant position among social networking sites in India, (a) can potentially be in contravention of 4(2)(a)(1) imposing unfair or discriminatory conditions in purchase of goods notably tying the method of payment to the product bought whereas users might for instance have used other systems of payment, like Paypal. Alternately, this may be thought to be an abuse of 4(2)(d) where the conclusion of the original contract is made contingent on supplementary obligations which have no connection with the subject of the original contract; (b) is a naked restraint and in blatant violation of 4(2)(d). The third activity (c) is an abuse of market power under 4(2)(e) because in the tied market, Facebook is using its dominant position to extract a large payment from the game developers. Thus there is a lot of potential for abuse of dominance here. 6. Competition among social networking sites in India is quite robust. At the end of 2008, the biggest social networking site in India was Orkut followed by Facebook, Bharatstudent, hi5, ibibo, Myspace, Linkedin, Perfspot, Bigadda and Fropper when the total market for social networking was about 19.37 million users. By July 2010, the number of social networking users had increased to 33.158 million users. Moreover, the relative ranking had changed with Facebook in the lead, followed by Orkut, Bharatstudent, Yahoo Pulse, Twitter, Linkedin, Zedge, Ibibo, Yahoo Buzz, Shtyle.fm. As one can see, 5 of the 10 biggest social networking sites have fallen out of the top 10 list. Since these are network industries, changes can take place at a high pace so it is important to have good data at first to establish whether there is any dominance at all in order to practice abuse of dominance. June 28, 2011 VIA EMAIL AND FEDEX OVERNIGHT Donald S. Clark Secretary U.S. Federal Trade Commission 600 Pennsylvania Avenue, NW Washington, D.C. 20580 Re: Facebook, Inc. and Facebook Credits Dear Secretary Clark: Enclosed is a Complaint, Request for Investigation, Injunction, and Other Relief submitted by Consumer Watchdog regarding Facebook, Inc. and its virtual currency, Facebook Credits. As explained in the complaint, Consumer Watchdog believes that Facebook is engaging in anticompetitive and unfair business practices in the market for virtual goods purchased in social games through its Facebook Credits terms with game developers. We request that, pursuant to the Federal Trade Commission’s authority under section 5 of the Federal Trade Commission Act and 16 C.F.R. § 2.5, the Commission investigate Facebook’s anticompetitive conduct and enjoin Facebook from engaging in conduct that violates sections 2 and 1 of the Sherman act, and section 5 of the Federal Trade Commission Act. Please let me know if you have any questions. Sincerely, Harvey Rosenfield cc via email: Jon Leibowitz, Chairman William E. Kovacic J. Thomas Rosch Julie Brill Edith Ramirez Before the Federal Trade Commission Washington, DC In the Matter of ) ) Facebook, Inc. and ) Facebook Credits ) ) ________________________________) Complaint, Request for Investigation, Injunction, and Other Relief I. Introduction 1. Consumer Watchdog submits this Complaint to the Federal Trade Commission (“FTC” or “the Commission”) requesting an investigation and injunctive relief concerning the anticompetitive terms and impact of Facebook Credits, an ambitiously revamped virtual currency system recently announced by Facebook, Inc. (“Facebook”), the dominant social networking company in the United States and the world. The revised Facebook Credits terms will take effect on July 1, 2011. Under the new contractual arrangements, imposed as Facebook prepares to go public in 2012,1 game developers using the Facebook platform must exclusively utilize Facebook Credits in the operation of their games; such developers must agree not to charge lower prices to consumers outside of Facebook; and game developers must pay a 30% service fee for all Facebook Credits purchases. 2. While Facebook requires all developers to adhere to these onerous and anti- competitive terms, Facebook has reportedly entered into a joint venture agreement with Zynga, Inc. (“Zynga”), the largest social game developer in the United States,2 apparently exempting it from the application of certain, undisclosed terms.3 1 Anupreeta Das, Facebook Sets Stage for IPO Next year, Wall Street Journal (Jan. 6, 2011), http://online.wsj.com/article/SB10001424052748703730704576066162770600234.html. 2 Zynga has more than 250 million monthly active users, which is about eight times the amount of the 2nd and 3rd largest social game developers. (See Developer Leaderboard, AppData.com, http://www.appdata.com/leaderboard/developers (last visited Jun. 24, 2011).) 3 Facebook and Zynga Enter Into Long Term Relationship, Facebook (May 18, 2010) (Press Release), http://www.facebook.com/press/releases.php?p=162172; see also Leena Rao, Facebook and Zynga Enter Into Five Year Partnership, Expand Use of Facebook Credits, TechCrunch (May 18, 2010), http://techcrunch.com/2010/05/18/facebook-and-zynga-enter-into-five-year-partnership-expand-use-of-facebook- credits/. In re Facebook and The Federal Trade Commission Facebook Credits 1 June 28, 2011 3. With over 500 million users,4 Facebook is the largest and by far the dominant social network on the planet.5 Approximately half of the U.S. population actively uses Facebook. 6 While Facebook has not disclosed revenue data, it is estimated that Facebook controls well over 50% of the market for virtual goods offered in social gaming.7 Thus, Facebook exercises monopoly power in that market. 4. The terms of Facebook Credits will enable Facebook to maintain and extend its monopoly power in that market.
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