With President Donald Trump lumping attacks on Amazon.com Inc. (AMZN) - Get Report with the litany of tweeted half-thoughts and gripes about virtually every topic on political note, it would be easy to relegate his accusation of antitrust violations to the long list of Oval Office Twitter topics that shouldn't be taken too seriously.
Indeed, there might not be much immediate threat from competition enforcers to Amazon's near-term business plan, such as the company's $14 billion bid to acquire Whole Foods Market Inc. (WFM) . But an eventual investigation by antitrust enforcers into what may be Amazon's biggest advantage in the market can't be brushed off by the behemoth online retailer.
The government interest could be peaked by the company's control over an almost unfathomable store of data containing consumers' online shopping and Internet search habits. Amazon isn't whistling past that prospect nor are its "Big Data" siblings Google Inc. (GOOGL) - Get Report , Facebook Inc. (FB) - Get Report , and Netflix Inc. (NFLX) - Get Report —each of them dominant platforms in their segment of online commerce.
The European Union is already taking action against what competition enforcers there believe are monopolistic abuses of the market power these companies have obtained. In June the European Commission handed Google a record-breaking $2.7 billion antitrust fine for abusing its dominance as a search engine and the other American Big Data firms are in the sights of European officials.
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The U.S. enforcers haven't taken similar steps yet, in large part because this country doesn't have a far-reaching enforcement tool such as Europe's restrictions on "abuse of dominance."
But enforcers on this side of the Atlantic can bring cases alleging predatory pricing or, under Section 5 of the Federal Trade Commission Act, the FTC can sue for unfair methods of competition.
So far, the FTC and the Department of Justice have shown no inclination to use those tools but to keep it that way the dominant online firms are investing tens of millions of dollars yearly to lobby Congress against new legislation that may prompt competition enforcers here to change their minds. According to OpenSecrets.org, Google spread $15.4 million among 25 lobbying firms in 2016. Amazon paid $11.4 million to 12 lobbying firms.
The firms' representatives in Washington, who declined to speak on the record, say they are little worried about the issues Trump has raised. For instance, his bizarre, even comical claim that Amazon should be investigated because its founder Jeff Bezos is unfairly using his ownership of the Washington Post to editorialize on behalf of tax breaks for Amazon would be laughed out of court if enforcers brought a claim based on that assertion. A case like that would be exposed as political retribution for the Post's coverage of Trump, which the president has complained about incessantly.
To be fair, it's not just Trump that has made absurd claims about investigating Amazon—a group of Democratic lawmakers have urged antitrust officials to investigate whether the Whole Foods-tie up will exacerbate "urban food deserts." The lack of grocery stores in poor urban neighborhoods is a real problem but hardly one that can be blamed on Amazon.
But the prospect of eventual action by U.S. officials to oversee how these companies use their caches of consumer information is one they aren't taking lightly. Their right to take it seriously, within the White House Trump chief strategist Steve Bannon has called for dominant online platforms to be regulated as utilities.
So far, the Amazon and its Big Data siblings have successfully painted the EU's action as a European vendetta against U.S. businesses but traditional retailers here are pointing to the merger with Whole Foods is one more example of the online giants' ability to fund their expansion into new business with profits from their online infrastructure business and sustain losses while they gain market share.
Business like Amazon Web Services' cloud computing and Google's Nest, which provides Internet controlled thermostats and security and safety monitoring, generate the profits used to fund the drive into retail. Traditional business faced with new competition from the dominant platforms accuse them of predatory pricing.
"Those revenue streams are financing its entry into new retail markets," said Amir Konigsberg, CEO of Twiggle, e-commerce services firm backed by China's Alibaba Group. "That's how they can offer free shipping and invest in technology, hardware, innovation, manufacturing space and supply chain."
Konigsberg, one of the founding members of Google's operations in Israel, said his background gives him insight into how Big Data is being used to transform retail.
He says the U.S.government is making a mistake by limiting competition review to the narrow issue of how a merger or specific competitive practice affects a single market like groceries.
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"Companies like Amazon are operating in several different ecosystems," Konigsberg said. "We have to consider the competitive dynamics across ecosystems."
That will require a change in mindset for U.S. enforcers.
"While the EC tends to look at the competitive impact of a transaction or behavior on various players in a market, the U.S. zeros in on the ramification for prices, quality and product availability," said one antitrust lawyer with experience in both Europe and the U.S.
To the extent U.S. officials look at the impact on other players in the market, the focus is limited to conduct meant to exclude rivals and become a monopoly.
If American regulators stick to their current practice, there still is a problem for Big Data firms: says another antitrust expert--the potential for a more restrictive regime in Europe than in the U.S. "They could end up with a European standard that obligates them to share data with a German start-up. The actual result may be that they refuse to enable some features in Germany that are available in the U.S."
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Editors' pick: Originally published July 28.