Facebook urges court to throw out FTC’s antitrust suit — again

Facebook on Monday urged a federal court to throw out the Federal Trade Commission’s revised antitrust suit against the company — a sign the social media giant plans to play hardball during a pivotal week in Washington.

The widely-expected court filing came weeks after the FTC filed an amended complaint against Facebook accusing the company of holding a monopoly in the US since 2011. It also came on a day when Facebook and its Instagram and WhatsApp services were offline globally for reasons that hadn’t been determined.

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The FTC suit seeks to force Facebook to restructure or sell off assets, including Instagram and WhatsApp. The regulator says owning those apps allow Facebook to unfairly squash competition.

But Facebook said the revised FTC suit remains "entirely without legal or factual support."

"The FTC still has no valid factual basis for alleging monopoly power," attorneys for Facebook argued in a 55-page filing. 

"This court gave the agency a second chance to make a valid claim," Facebook said in Monday’s filing. "But the same deficiency that was fatal to the FTC’s initial complaint remains: the amended complaint still pleads no facts plausibly establishing that Facebook has, and at all relevant times had, monopoly power."

The FTC filed the amended complaint in August after federal judge James E. Boasberg threw out a Trump-era version for being "vague" and "too speculative" in its arguments. 

In the FTC’s amended complaint, the regulator argued that Facebook holds a monopoly in the "personal social networking" market. 

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The FTC argued that Facebook’s sphere of competition is separate from online platforms like YouTube or TikTok. The FTC said people don’t primarily use those platforms to communicate with friends and family. Therefore, just because TikTok is popular, that doesn’t mean Facebook doesn’t have a monopoly when it comes to social media platforms that are used for personal communication, the FTC said.

"Snapchat is the next-largest provider of personal social networking services, but its user base pales in comparison: Snapchat has tens of millions fewer monthly users than either Facebook Blue or Instagram," the FTC argued, referring to the main Facebook site and the photo-sharing site.

Facebook argued in its response that the idea of a distinct personal social media space that excludes TikTok, YouTube, Twitter and even Apple’s iMessage is a legal fiction. 

"The absence of any data, from any source, for a [personal social networking services] market makes clear that the proposed market reflects the FTC’s litigation imperatives – not commercial realities," Facebook said in the filing. 

Facebook has also argued that FTC Chairwoman Lina Khan should recuse herself from the probe because she has criticized the company in the past. 

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Monday’s filing — which came less than 24 hours before Facebook whistleblower Frances Haugen is set to testify in the Senate — shows that Facebook is not conceding any ground in what could be an existential battle with antitrust regulators. 

But markets weren’t taking Facebook’s side, it seemed. The company’s stock was down 5.8 percent by Monday afternoon as investors digested Haugen’s Sunday night 60 Minutes interview and anticipated her Tuesday testimony. The updated court filing did little to lift Facebook shares.

The Monday filing also came amid an hours-long wave of outages affecting Facebook, Instagram and WhatsApp users around the globe. The outage also appeared to affect Facebook’s own internal services, forcing the company to communicate with journalists on Monday through a third-party public relations firm, Brunswick Group. 

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