Facebook asks court to toss FTC lawsuit over its buys of Instagram and WhatsApp

Shannon Bond

October 04, 2021 / 10:52 am

caption: Facebook asked a federal judge on Monday to dismiss the FTC's lawsuit alleging the company bought Instagram and WhatsApp to stifle competition in the social networking market.

Facebook is again asking a federal court to throw out the Federal Trade Commission's antitrust lawsuit accusing the company of crushing its rivals, in the latest chapter of the company's showdown with Washington critics.

"The case is entirely without legal or factual support. This is as true now as it was before," Facebook said in a filing with the U.S. District Court for the District of Columbia on Monday.

The FTC first sued the social media giant in December, accusing it of both buying emerging rivals Instagram and WhatsApp to stave off competition and luring other up-and-coming companies with access to its platform and data and then cutting them off when they were successful enough to become threats. The agency says Facebook should be forced to sell or spin off those apps.

But a judge dismissed the regulator's complaint this summer, saying the agency had failed to prove Facebook has a monopoly in social networking. However, the judge gave the FTC 30 days to refile its complaint with more evidence.

So the FTC took another swing in August, bolstering its claims with data it said showed Facebook "has been the dominant and largest personal social networking service in the United States since at least 2011."

Facebook has argued it faces plenty of competition from the likes of TikTok, YouTube, Twitter, LinkedIn and Apple's iMessage. The FTC has argued those companies don't fall in the same category of providing "personal social networking."

The FTC's complaint cites figures from research firm Comscore showing that since 2012, Facebook's share of time spent by U.S. users of social networking apps has exceeded 80% and its share of monthly users has been over 65% — far exceeding rivals like Snapchat, MeWe and MySpace.

In its motion to dismiss, Facebook said the FTC has still failed to show the company has monopoly power. It accused the regulator of cherry-picking data and said the numbers it cited did not in fact show Facebook's share in the market the FTC defined.

A Facebook spokesman said in a statement: "The FTC's amended complaint fails to fix the deficiencies of its first attempt, and should suffer the same fate. The FTC's fictional market ignores the competitive reality: Facebook competes vigorously with TikTok, iMessage, Twitter, Snapchat, LinkedIn, YouTube, and countless others to help people share, connect, communicate or simply be entertained. The FTC cannot credibly claim Facebook has monopoly power because no such power exists. We continuously innovate and improve our products and services to earn people's time and attention because we have to."

Facebook also asked the judge to weigh in on whether the new FTC chair, Lina Khan, should have to recuse herself from the case. Khan has been an outspoken critic of big tech companies including Facebook. She "came to the FTC having already made up her mind that Facebook has violated the antitrust laws and with an 'axe to grind' against the company," Facebook argued in its filing. It had petitioned the FTC for Khan's recusal, but the agency dismissed the petition.