Microsoft realises criticising the FTC’s constitutionality was dumb and offers a forelock-tugging retraction
We’ve all said things we regret, but very few of us have filed those things in print to the United States Federal Trade Commission (FTC). But most of us aren’t Microsoft, which spent a chunk of a submission to the FTC (opens in new tab) last month in full “the whole damn system’s out of order” mode, decrying the FTC’s structure and its lawsuit against Microsoft’s $69 billion acquisition (opens in new tab) of Activision Blizzard as a wholesale violation of the US Constitution.
But Axios reports (opens in new tab) that Microsoft has done some cooling off over the Christmas break, filing an amended submission with those complaints removed and saying it was a mistake to make them in the first place. The new filing (opens in new tab) maintains Microsoft’s opposition to the FTC’s lawsuit and stringently argues that the acquisition would make Activision’s games more accessible to consumers. In fact, it’s incredibly similar to last month’s submission, save for the absence of six notes in the “Affirmative and Other Defenses” section which lambasted the FTC for violating the Constitution and Microsoft’s Fifth Amendment rights.
If anything, it seems that Microsoft is now a little embarrassed that it flew off the handle in the original submission. Speaking to Axios, Microsoft spokesperson David Cuddy said that the company “initially put all potential arguments on the table internally,” but ought to have “dropped these defenses before we filed” the first time. In a statement redolent with the vibes of someone who’s realised they were actually in the wrong after a spectacular row, Cuddy went so far as to affirm Microsoft’s respect for the FTC’s “important mission to protect competition and consumers.”
Whether these regretful sweet nothings will please the FTC or persuade it to drop its lawsuit is another matter entirely. Just this week, an FTC attorney told a pretrial hearing that there weren’t any “substantive” settlement talks (opens in new tab) ongoing between the body and Microsoft, which probably isn’t a good omen for anyone hoping for a speedy resolution to the lawsuit. Still, Microsoft is likely right to drop the more provocative aspects of its defense: It needs to convince regulators it will be a reliable and responsible steward of Activision’s myriad properties. Sweeping accusations of unconstitutionality don’t exactly help that image.
The FTC isn’t the only institution that Microsoft needs to worry about. Both UK and EU regulators have launched in-depth investigations of the purchase in the last few months, voicing concerns about Microsoft’s competitors’ access to Call of Duty in particular. It has been cleared to go ahead in Saudi Arabia, Brazil, Serbia (opens in new tab), and Chile (opens in new tab), though, so I guess Microsoft won’t be directing any invective—or the subsequent apology letters—their way in the near future.
