FTC files another antitrust lawsuit against Facebook

The lawsuit intends to force Facebook to sell Instagram and WhatsApp.
This illustration photo shows the Facebook logo on a smartphone in front of a computer screen in Los Angeles on August 12, 2021.

The Federal Trade Commission voted 3-2 on Wednesday to file a new antitrust complaint against Facebook, after a federal judge dismissed its previous complaint in June.

FTC Chair Lina Khan, along with her two fellow Democratic colleagues, voted in favor of filing the complaint, while the two Republicans opposed it, Politico reported.

The goal of the lawsuit is to make Facebook sell off Instagram and WhatsApp, which would be the first court-ordered, antitrust breakup of a company since the 1980s with AT&T.

Facebook attempted to get Khan recused from the case, as she had previously worked on a 2020 House Judiciary Committee antitrust probe regarding online market competition. But the FTC's Office of General Counsel denied Facebook's petition, saying, "As the case will be prosecuted before a federal judge, the appropriate constitutional due process protections will be provided to the company."

The social media company criticized the FTC's lawsuit in a statement.

"There was no valid claim that Facebook was a monopolist — and that has not changed. Our acquisitions of Instagram and WhatsApp were reviewed and cleared many years ago, and our platform policies were lawful," said Facebook spokesperson Christopher Sgro. "The FTC's claims are an effort to rewrite antitrust laws and upend settled expectations of merger review, declaring to the business community that no sale is ever final."

The FTC's initial complaint was filed in December, claiming that Facebook either buys or buries its competitors, meaning if it is unable to buy them, then it would effectively make them noncompetitive.

The FTC alleges this is what Facebook did when it bought up Instagram and WhatsApp. However, when competitors could not be bought, according to the FTC, "after starting Facebook Platform as an open space for third party software developers, Facebook abruptly reversed course and required developers to agree to conditions that prevented successful apps from emerging as competitive threats to Facebook."

In June, U.S. District Judge James Boasberg dismissed the FTC's December complaint, saying that it had not provided enough evidence for its own assertion that Facebook controls over 60% of the social media market.

Boasberg gave the FTC until Aug. 19 to file a new complaint pertaining to the evidence he said they lacked.

The new FTC complaint claims Facebook controls around 80% of the market when considering how much time users spend on a variety of apps.

Republican Commissioner Christine Wilson, who voted against filing the new complaint, wrote a rare FTC dissent, arguing that she saw it as "bad policy to undermine the integrity of the premerger notification process established by Congress and the repose that it provides to merging parties that have faithfully complied with its requirements."