[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24134-24139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08573]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 220418-0099]
RIN 0660-XC052


Developing a Report on Competition in the Mobile App Ecosystem

AGENCY: National Telecommunications and Information Administration, 
U.S. Department of Commerce.

ACTION: Notice; request for comment.

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SUMMARY: Restoring competition in the American technology sector is a 
critical priority of the President's Executive order on Promoting 
Competition in the American Economy. On behalf of the U.S. Department 
of Commerce, the National Telecommunications and Information 
Administration (NTIA) is requesting comments on competition in the 
mobile application ecosystem. The data gathered through this process 
will be used to inform the Biden-Harris Administration's competition 
agenda, including, but not limited to, the Department of Commerce's 
work developing a report to submit to the Chair of the White House 
Competition Council regarding the mobile application ecosystem.

DATES: Written comments must be received on or before 11:59 p.m. 
Eastern Time on May 23, 2022.

ADDRESSES: All electronic public comments on this action, identified by 
docket number NTIA-2022-0001 may be submitted through the Federal e-
Rulemaking Portal at www.regulations.gov. The docket established for 
this rulemaking can be found at www.regulations.gov, NTIA-2022-0001. 
Click the ``Comment Now!'' icon, complete the required fields, and 
enter or attach your comments. Responders should include a page number 
on each page of their submissions. Please do not include in your 
comments information of a confidential nature, such as sensitive 
personal information or proprietary information. All comments received 
are a part of the public record and will generally be posted to 
Regulations.gov without change. All personal identifying information 
(e.g., name, address) voluntarily submitted by the commenter may be 
publicly accessible. For more detailed instructions about submitting 
comments, see the ``Instructions for Commenters'' section at the end of 
this Notice.

FOR FURTHER INFORMATION CONTACT: Please direct questions regarding this 
Notice to <a href="/cdn-cgi/l/email-protection#5d3c2d2d702f3b3e1d3329343c733a322b"><span class="__cf_email__" data-cfemail="4c2d3c3c613e2a2f0c2238252d622b233a">[email protected]</span></a>, indicating ``Notice and Request for 
comment'' in the subject line, or if by mail, addressed to Ruth 
Yodaiken, National Telecommunications and Information Administration, 
U.S. Department of Commerce, 1401 Constitution Avenue NW, Room 4725, 
Washington, DC 20230; telephone: (202) 482-4067. Please direct media 
inquiries to NTIA's Office of Public Affairs, telephone: (202) 482-
7002; email: <a href="/cdn-cgi/l/email-protection#98e8eafdebebd8f6ecf1f9b6fff7ee"><span class="__cf_email__" data-cfemail="5b2b293e28281b352f323a753c342d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background and Authority

    On July 9, 2021, the President signed Executive Order 14036 on 
Promoting Competition in the American Economy (E.O.).\1\ As the E.O. 
explains, ``[t]he American information technology sector has long been 
an engine of innovation and growth, but today a small number of 
dominant internet platforms use their power to exclude market entrants, 
to extract monopoly profits, and to gather intimate personal 
information that they can exploit for their own advantage. Too many 
small businesses across the economy depend on those platforms and a few 
online marketplaces for their survival.''
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    \1\ E.O. 14036, 86 FR 36987, Section (r) (iii) (July 9, 2021), 
https://www.govinfo.gov/content/pkg/FR-2021-07-14/pdf/2021-15069.pdf#page=1.
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    The E.O. includes numerous initiatives to address the problem of 
dominant tech platforms undermining competition and reducing 
innovation. Included among them is a directive to the Secretary of 
Commerce to, in consultation with the Attorney General and the Chair of 
the Federal Trade Commission (FTC), conduct a study--including by 
conducting an open and transparent stakeholder consultation process--of 
the mobile application (app) ecosystem, and submit a report to the 
Chair of the White House Competition Council, regarding findings and 
recommendations for improving competition, reducing barriers to entry, 
and maximizing user benefit with respect to the ecosystem.\2\
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    \2\ Software applications are often referred to as ``apps,'' and 
the term is used throughout to refer to mobile apps, either native 
or web-based.
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    By one account, the app economy was valued at $1.7 trillion in 
2020, and over 300,000 U.S. companies work in this sector, employing 
more than 5.9 million Americans.\3\ The two main app stores are 
operated by companies with headquarters in the United States. Global 
consumer spending in this ecosystem is also growing rapidly, estimated 
by some as nearly doubling from 2016 to 2020, to reach $120 billion.\4\ 
Entire new sectors of industries have been spawned as a result of app 
innovation, such as ride sharing, or have experienced technical 
advancement, such as smart home appliances. The app economy is becoming 
a fundamental way that Americans interact with their environment. Thus, 
it is critical that this market be robust, open, innovative, and 
secure--and without barriers to entry and growth.
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    \3\ State of the U.S. App Economy: 2020. ACT: The App 
Association (Jan. 31, 2021) (ACT Report 2020), https://actonline.org/wp-content/uploads/2020-App-economy-Report.pdf.
    \4\ ACT Report 2020.
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    On behalf of the Department, and in furtherance of this 
requirement, NTIA is requesting comments from the public on competition 
in the ecosystem in which mobile apps exist. The goal is to support the 
Administration's efforts to promote competition in the tech sector and 
to inform NTIA's analysis of ways to support healthy competition in the 
market for mobile apps, in particular.
    NTIA is the executive branch agency that is principally responsible 
by law for advising the President on telecommunications and information 
policy. NTIA studies and develops policy advice for the Administration 
related to communications and the

[[Page 24135]]

internet,\5\ including to promote the efficient and effective use of 
telecommunications and information resources.\6\ In that role, NTIA 
regularly works on national policies on the communications 
infrastructure.\7\ Additionally, the Department more broadly is charged 
with promoting job creation and economic growth.
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    \5\ See 47 U.S.C. 902 (b)(2)(D) and (H).
    \6\ NTIA has also examined the economic aspects of modern 
technology. See, e.g., Internet Policy Task Force & Digital Economy 
Leadership Team, Dep't of Commerce, Fostering the Advancement of the 
Internet of Things (Jan. 2017), https://www.ntia.doc.gov/files/ntia/publications/iot_green_paper_01122017.pdf.
    \7\ See, e.g., NTIA ACCESS BROADBAND, 2021 Report (Dec. 2021), 
https://www.ntia.doc.gov/files/ntia/publications/ntia_access_broadband_2021_report.pdf.
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    This study is aimed at examining unique aspects of competition 
involving apps on mobile phones and tablets.\8\ In doing so, we 
recognize that the general mobile ecosystem is comprised of a number of 
distinct types of entities and interrelated markets. Mobile service 
providers play a role in a range of relevant aspects, including 
broadband service and determining which apps are pre-loaded or set as 
defaults. At the same time, functionality and app distribution are also 
dependent upon operating systems and app stores, which function as sub-
ecosystems.\9\ For this study, we are seeking to look beyond the 
general to examine particular environments in which different types of 
apps and associated businesses operate. For example, there might be 
different opportunities and barriers \10\ that distinguish some types 
of apps, such as those used for medical purposes, payments, streaming, 
social-networks, messaging, or apps that connect to other items by 
virtual or physical connections (e.g., to tracking or Internet-of-
Things devices). Other app ecosystems that exist or extend beyond 
mobile, such as those for gaming consoles and personal computers, might 
be relevant to our review, but only to the extent that analysis of them 
offers clear facts for comparison.
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    \8\ This is similar to how the mobile ecosystem is described by 
United Kingdom's Competition and Markets Authority (CMA) in its 
study of the ``Mobile ecosystems.'' See CMA, Market Study Notice; 
Mobile Ecosystems, para. 2, June 15, 2021 (UK) (``In this notice the 
supply of `mobile ecosystems' means the supply of smartphones and 
tablets, and associated software such as operating systems, app 
stores, browsers, and applications'').
    \9\ See, e.g., Majority Staff of, H. Subcommittee on Antitrust, 
Commercial and Administrative Law, Comm. on the Judiciary, Rep. and 
Recommendations on Investigation of Competition in Digital Markets 
2020 (House Subcommittee Digital Markets Report) (e.g., descriptions 
of Google and Apple ecosystems, starting at 211 and 332, 
respectively), https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf; see also CMA, Mobile Ecosystems; 
Market Study Interim Report, Dec.14, 2021 (UK) (UK CMA Interim 
Report), https://www.gov.uk/government/publications/mobile-ecosystems-market-study-interim-report; Netherland Auth. for 
Consumers & Markets, Market Study Into Mobile App Stores (2019) 
(referring to bottlenecks at 40), https://www.acm.nl/sites/default/files/documents/market-study-into-mobile-app-stores.pdf.
    \10\ Barriers that could make it harder to enter a field or 
succeed might include funding hurdles, restrictions by operating 
services or regulators, technical variations requiring additional 
software development and maintenance, or obstacles that prevent a 
business from obtaining a big enough user base to make their product 
workable (e.g., a dating app).
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    The Executive Order specifically requires consultation on the NTIA 
study with the Department of Justice (DOJ) and the FTC, who are the 
primary enforcers of competition law at the federal level. Law 
enforcement agencies have been assessing the evolving digital markets 
in which apps operate.\11\ Along with actions by the states, private 
actors, the courts, and legislators, such legal examinations are 
shaping the mobile app ecosystem and have helped elevate the discussion 
of competition barriers, as well as proposals to facilitate greater 
competition in the app marketplace.\12\ These actions have also been 
tangibly altering the ecosystem. For example, the roles of the two 
major app stores, including the commission fees they charge, and 
restrictions they place on how apps interact with consumers, as well as 
technical barriers, have been impacted by decisions by lawmakers across 
the globe.\13\
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    \11\ See, e.g., United States et al. v. Google, LLC, No. 1:20-
cv-03010, (D.D.C. amended complaint filed Jan 15, 2021); ``FTC Staff 
Presents Report on Nearly a Decade of Unreported Acquisitions by the 
Biggest Technology Companies,'' FTC press release, Sept. 15, 2021 
(study of acquisitions by Alphabet/Google, Amazon, Apple, Facebook, 
and Microsoft), https://www.ftc.gov/news-events/press-releases/2021/09/ftc-report-on-unreported-acquisitions-by-biggest-tech-companies; 
see also Substitute Amended Complaint for Injunctive and Other 
Equitable Relief at 44, FTC v. Meta Platforms, Inc., No. 1:20-cv-
03590 (D.D.C. Sept. 8, 2021).
    \12\ See, e.g., Amended Complaint, Utah v. Google LLC, No. 3:21-
cv-05227 (N.D. Cal Nov. 1, 2021) (37 AGs v. Google) (37 Attorneys 
General allege Google's conduct has driven up competitor prices, 
limited consumer choice, misrepresented security risks of apps 
outside of its app store); see also Hearing of the Senate 
Subcommittee on Competition Policy, Antitrust, and Consumer Rights, 
Antitrust Applied: Examining Competition in App Stores (April 21, 
2021), https://www.judiciary.senate.gov/meetings/antitrust-applied-examining-competition-in-app-stores; Digital platform services 
inquiry, Interim report No. 2--App marketplaces, Australian 
Competition & Consumer Commission, March 2021.
    \13\ See, e.g., South Korea: Amended Telecommunications Business 
Act Will Ban App Payment Monopolies, Library of Congress, 2021, 
https://www.loc.gov/item/global-legal-monitor/2021-09-16/south-korea-amended-telecommunications-business-act-will-ban-app-payment-monopolies/; KCC Draws Up Standards to Determine Violation of 
Prohibited Acts By App Market Business Operators, Press Release, 
Korea Communications Commission (Mar. 10, 2022); Epic Games, Inc. v. 
Apple, Inc., No. 4:20-cv-05640 (N.D. Cal. Sept. 10, 2021) (regarding 
Apple taking a percentage of apps' revenues and limiting their 
communication with consumers); see also, Deal on Digital Markets 
Act: EU rules to ensure fair competition and more choice for users, 
Press Release, European Parliament, IMCO (Mar. 24, 2022) (noting the 
proposed legislation requires ``that the largest messaging services 
(such as . . . iMessage) will have to open up and interoperate with 
smaller messaging platforms, if they so request''), https://www.europarl.europa.eu/news/en/press-room/20220315IPR25504/deal-on-digital-markets-act-ensuring-fair-competition-and-more-choice-for-users.
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    Another area of inquiry has centered around the potential for abuse 
of commercial data obtained by competitors, to the detriment of privacy 
and competition.\14\ In addition, there are concerns about whether 
companies interfere with the creation of innovative new products and 
services by limiting the ability of mobile apps and their associated 
products and services from accessing a particular set or network of 
customers.\15\ While this study will not include a legal assessment of 
whether certain practices violate the law, we are interested in 
learning of rules and practices that make it harder to open and run 
businesses or that harm innovation.
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    \14\ See, e.g., Fact Sheet: Executive Order on Promoting 
Competition in the American Economy, The White House (July 9, 2021), 
https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/; see also, House Subcommittee Digital Markets 
Report, supra note 6, at 43.
    \15\ See, e.g., 37 AGs v. Google, supra note 9; see also, House 
Subcommittee Digital Markets Report, supra note 6, at 178.
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    In addition to competition agencies, other agencies have relevant 
roles in overseeing specific types of apps as part of a broader 
ecosystem. For example, the Federal Communications Commission (FCC) 
also oversees the communications marketplace, including aspects of 
competition between mobile service providers, and has for years 
assessed the competitive elements of the ecosystem.\16\ The Consumer 
Financial Protection Bureau (CFPB) has also been examining payment 
ecosystems.\17\
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    \16\ See, e.g., FCC, 2020 Communications Marketplace Report, GN 
Doc. No. 20-60 (Dec. 31, 2020); FCC, Annual Report and Analysis of 
Competitive Market Conditions with Respect to Mobile Wireless, 
Including Commercial Mobile Services, DA-16-1061, WT Doc. No. 16-
137, paras. 124-7 (Sept. 23, 2016) (19th Mobile Competition Report) 
(discussing mobile applications).
    \17\ See, e.g., CFPB, Consumer Access to Financial Records, 
advance notice of proposed rulemaking, CFPB-2020-0034, 85 FR 71003 
(Nov. 2020).
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    In the study, NTIA will take a holistic approach to analyzing the 
mobile app ecosystem with the goal of identifying recommendations to 
improve competition, reduce barriers to entry, and maximize user 
benefit with respect to the ecosystem. In addition to

[[Page 24136]]

fundamentals about the structure of the ecosystem, including how the 
apps are distributed, there are many issues that might be relevant to 
developers and app users. For example, common occurrences of fraud--or 
perceptions of it--might impact whether consumers download apps and 
businesses are comfortable offering their products through specific 
distribution channels. While there are many issue areas and markets 
that could be brought into this study, the scope will only address 
topics most relevant to the mobile app ecosystem.
    Given the incredible promise that the app system holds, NTIA is 
also interested in learning what app users need to maximize user 
benefit,\18\ particularly users who use apps in their daily life or for 
business operations. There is limited information on how people use 
apps. For example, some sources estimate that each mobile device has 
20-46 apps loaded at any time, but there is limited comparable data to 
confirm whether that is an accurate or optimal number to foster 
innovation.\19\
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    \18\ See, e.g., Jennifer Bjorhus, Minnesota teen wins Ann 
Bancroft grant for app to reduce litter, StarTribune (Dec. 24, 
2021), https://www.startribune.com/minnesota-teen-wins-ann-bancroft-grant-for-app-to-reduce-litter/600130173/?refresh=true.
    \19\ See, e.g., L. Ceci, Number of apps installed by mobile 
users in the United States as of 3rd quarter 2019, Statista (Oct. 
19, 2021) (``Statista 2021''), https://www.statista.com/statistics/267309/number-of-apps-on-mobile-phones; Stephanie Chan, U.S. 
Consumers Used an Average of 46 Apps Each Month in the First Half of 
2021, Sensor Tower (Aug. 19, 2021), https://sensortower.com/blog/apps-used-per-us-smartphone.
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    Topic areas that the agency will use to address mobile app 
ecosystem competition in the forthcoming report will be informed by 
input from public comment. Possible topics are outlined below.

II. Request for Comment

    Through this Request for Comment, NTIA is seeking public input to 
further develop its understanding of competition within the mobile app 
ecosystem. NTIA is looking for concrete and specific information as to 
what app developers, organizations, and device (i.e., phones; tablets) 
users experience, and any potential challenges or barriers that limit 
app distribution or user adoption. To the extent commenters choose to 
respond to the specific questions asked, responses should generally 
follow the structure below and note the number corresponding to the 
question. As detailed below, through this Request for Comment, NTIA is 
seeking information on the state of competition, the factors affecting 
app development and distribution, and active ways to increase 
competition, through government or private sector action.

Definitions and Statistics

    1. How should we measure whether the app ecosystem is competitive?
    a. How should the ``success'' of an app be measured? \20\
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    \20\ See, e.g., Using Pirate Metrics to Analyze Your Mobile 
Application's Audience, Jacob Parcell, General Services 
Administration (May 12, 2016), https://digital.gov/2016/05/12/using-pirate-metrics-to-analyze-your-mobile-applications-audience/.
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    b. How should the ``failure'' of an app be measured? \21\ What is 
known about the reasons that app developers no longer offer or support 
apps?
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    \21\ See, e.g., Why Consumers Download, and Delete, a Retailer's 
Mobile App: Promos and rewards drive downloads, eMarketer (July 14, 
2016), https://www.emarketer.com/Article/Why-Consumers-Download-Delete-Retailers-Mobile-App/1014212.
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    c. Does the reported total of the number of apps available at any 
one time in an app store have bearing on the state of competition among 
apps or particular categories of apps? \22\
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    \22\ See, e.g., L. Ceci, Number of apps available in leading app 
stores as of 2021, Statista (Dec. 14, 2021), https://www.statista.com/statistics/276623/number-of-apps-available-in-leading-app-stores/.
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    2. Are there any important and specific entities (or categories of 
entities) such that it would be a mistake to omit--or improperly 
include--them by defining the ``mobile app ecosystem'' to focus on 
mobile devices, such as phones and tablets?
    a. If so, how should this study be scoped so that it is optimal but 
feasible?
    b. For example, should mobile apps offered specifically for 
enterprise use (e.g., for use by businesses, not for consumers) be 
considered in this study?
    3. Apps are not all the same. For example, some have different 
technical features and capabilities (e.g., location-based apps compared 
to messaging apps), while others are bound by specific regulatory 
guardrails (e.g., banking apps or children's apps). In the context of 
framing competitiveness within the ecosystem, how should we categorize 
types of apps so that they are grouped by distinguishable barriers and 
other significant factors? Are there ways to best categorize or segment 
the market to diagnose specific market barriers, such as those that 
could impact app developers, or consumers?
    a. Should distinctions be made based on type of content and app 
functionality?
    b. Should distinctions be made based on the level of hardware or 
operating system integration required for the app to function? For 
example, categories might include apps that access location data, 
special-purpose hardware (e.g., near field communications), secure 
elements for payment, or other credentials.
    c. Should a distinction be made for apps that are the primary way 
(or the only way) the app provider interacts with users, as opposed to 
apps that are an extension of an existing digital or physical business? 
Do app-based businesses face different competitive constraints than 
businesses that have a brand and presence outside of mobile apps?
    4. How should web apps (browser-based) or other apps that operate 
on a mobile middleware layer be categorized?
    5. There are some indicators that there is a difference in kind 
between some apps that generate large amounts of money or are 
downloaded often and most other apps. For example, one industry analyst 
reported that 97% of publishers that monetize through the Apple App 
Store earned less than $1 million per annum in 2021, compared to other 
reports of more than $1 billion earned by the top 13 apps (including 
games) on both Apple and Google platforms.\23\ What is the best way to 
assess the competition environment for less popular apps and start-ups?
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    \23\ State of Mobile 2021, App Annie, at 8, (last visited April 
14, 2022), https://www.data.ai/en/go/state-of-mobile-2021/; see also 
App Annie: Global app stores' consumer spend up 19% to $170B in 
2021, downloads grew 5% to 230B, Sarah Perez, TechCrunch, Jan. 12, 
2022, https://techcrunch.com/2022/01/12/app-annie-global-app-stores-consumer-spend-up-19-to-170b-in-2021-downloads-grew-5-to-230b/?utm_medium=TCnewsletter&tpcc=TCappnewsletter.
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    a. Can any potential harms, such as deficiencies in data security 
and privacy protections, be traced back to the current market 
imbalance?
    b. Is there evidence to suggest that consumers are less likely to 
avoid or stop using a particular app even if they would prefer a more 
privacy enhancing environment because of a lack of competitors offering 
similar services?

Software and Support for Developers

    6. What unique factors, including advantages and obstacles, are 
there generally for app development -- especially start-ups -- that are 
relevant for competition? \24\
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    \24\ See, e.g., Letter from Congresswoman Eshoo and colleagues 
to Director Panchanathan, National Science Foundation, and Acting 
Director Jarmin, Census Bureau, Nov. 4, 2021, https://eshoo.house.gov/sites/eshoo.house.gov/files/AnnualBusinessSurveyLetter11421.pdf.
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    a. Are there unique market dynamics in this ecosystem (such as the 
existence of a small number of dominant technology companies) that 
affect

[[Page 24137]]

mobile apps' ability to secure funding? \25\
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    \25\ See, e.g., Written Testimony of FTC Commissioner Rohit 
Chopra before the U.S. House of Representatives, Committee on the 
Judiciary, Subcommittee on Antitrust, Commercial, and Administrative 
Law Hearing on Online Platforms and Market Power, Part 3: The Role 
of Data and Privacy in Competition, (Oct. 18, 2019) (expressing 
concern ``that many investors are reluctant to allocate capital to 
innovators that seek to challenge and disrupt this dominance. 
Instead, investors tell me they prefer to fund companies that can 
eventually be sold an incumbent''), https://www.ftc.gov/system/files/documents/public_statements/1549812/chopra_-_testimony_at_hearing_on_online_platforms_and_market_power_part_3_10-18-19.pdf.
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    b. Are some methods of monetization essential to the economic 
success of an app? What are they? For example, is there pressure to 
incorporate advertising or collect personal data of users \26\ or 
engage in unique relationships with data aggregators?
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    \26\ see, e.g., Free and paid distribution for Android and iOS 
2022, Statista, March 14, 2022, (last visited April 14, 2022) (Most 
apps are offered at no direct monetary cost to the user), https://
www.statista.com/statistics/263797/number-of-applications-for-
mobile-phones/
#:~:text=As%20of%20March%202021%2C%2096.7%20percent%20of%20apps,Store
%20and%20Google%20Play%20as%20of%20March%202021.
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    7. Are there particular obstacles preventing more development from 
different communities, such as by location/region, ethnicity/race, 
language, or gender? \27\
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    \27\ See, e.g., Congressional App Challenge, Inclusion and 
Diversity, https://www.congressionalappchallenge.us/impact/#Diversity; see, generally, Congressional App Challenge (last 
visited April 18, 2022), https://www.congressionalappchallenge.us/.
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    8. Are there studies or specific examples of the costs or 
advantages for app developers to build apps for either, or both, of the 
main operating systems, iOS and Android (which have different 
requirements)? \28\
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    \28\ See, e.g., App Development Costs, Business of Apps (2022) 
(April 1, 2022), https://www.businessofapps.com/app-developers/research/app-development-cost/; contrast Sophie Zoria, How the 
Fragmentation of iOS and Android Platforms Affects App Development, 
Medium, Swag Soft, June 23, 2020, https://medium.com/swag-soft/how-the-fragmentation-of-ios-and-android-platforms-affects-app-development-f992cb87bafc.
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    a. What are the challenges specific to multi-platform development 
and how can they be mitigated?
    b. What are the costs and advantages of developing standalone apps 
for these platforms relative to other means of providing the same 
services or content, such as web apps, which can operate across 
platforms?
    9. What role does interoperability play in supporting and advancing 
a competitive mobile app ecosystem?
    a. What are the key characteristics of interoperability as it 
relates to the mobile app ecosystem?
    b. What other barriers (e.g., legal, technical, market, pricing of 
interface access such as Application Programing Interfaces [APIs]) 
exist, if any, in fostering effective interoperability in this 
ecosystem? How are these barriers different or similar than those 
present in other ecosystems?
    c. How does data portability, or lack thereof, factor into 
consumers keeping the same app if they switch from one operating system 
(iOS or Android) to another? \29\
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    \29\ For descriptions of some difficulties reported in this 
area, see Majority Staff of, H. Subcommittee on Antitrust, 
Commercial and Administrative Law, Comm. on the Judiciary, Rep. and 
Recommendations on Investigation of Competition in Digital Markets, 
at 102-104 (2020).
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    10. While apps can be coded from scratch, Software Development Kits 
(SDKs) and other technical tools can make it easier for developers to 
create apps. What data is available to show how such tools shape the 
ecosystem and affect the ability of developers to compete?
    a. Which tools are most often used by app developers and what are 
the entities that offer those tools?
    b. Do these tools make it easier for a developer to create apps for 
multiple platforms? How so? Are there any trade-offs (e.g., 
performance, battery life, or stability) for using these tools?
    c. Are developers of certain types of apps more likely to use the 
assistance?
    d. Are there privacy or security concerns associated specifically 
with these tools?
    e. What empirical data exists to support findings on this topic?
    11. How do policy decisions by firms that operate app stores, build 
operating systems, or design hardware impact app developers (e.g., 
terms of service for app developers)? What empirical data exists to 
support those findings?
    a. In particular, how does a lack of transparency about app market 
rejections affect app developers (e.g., costs)?
    b. How do the policy decisions affect or limit the feasibility or 
availability of alternative models of app development (e.g. open 
source), delivery (e.g. browser-based apps), or funding (e.g. non-
commercial or donation-based models)?
    12. What types of labor restrictions or workforce pipeline 
challenges, if any, limit paths for app innovation? What may solutions 
look like?

Avenues for App Distribution

    13. Some mobile apps are pre-loaded on mobile devices or set as 
default apps, while others are only available through an app store, 
through a browser (web apps), or, for devices using the Android system, 
by sideloading. Is there data comparing these mechanisms and their 
effect on app distribution?
    a. Is there a competitive advantage to being preloaded or available 
by default to the users of phones and tablets? What is the evidence to 
support or contradict there being an advantage? \30\
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    \30\ While the UK CMA's Interim Report, for example, refers to 
some studies in this area, the raw data and it suggests further 
study is necessary. See, e.g., UK CMA Interim Report at 277.
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    b. Is there data on the number of developers that have been able to 
have their apps preloaded or available as default apps or the types of 
apps?
    c. What information is available on the types of agreements these 
developers reached and with whom to preload or set their app as a 
default app?
    14. As noted above, governments and courts are already exploring 
concerns about control of app access to users exercised by mobile app 
stores and other ecosystem participants.
    a. What data and studies exist that identify specific additional 
obstacles that developers and businesses might face related to the 
distribution of apps? \31\ Commenters may reference factual findings in 
existing cases and filings in government explorations.\32\
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    \31\ See, e.g., Letter to Kate Reader and Morag Bond, Co-General 
Managers, Digital Platforms Unit, Australian Competition and 
Consumer Comm'n, from Microsoft, Oct. 16, 2020, https://www.accc.gov.au/system/files/Microsoft%20%2816%20October%29.pdf.
    \32\ See, e.g., Report regarding Fact-Finding Survey on Digital 
Platforms (Business-to-Business transactions on retail platform and 
app store), Fair Trade Commiss'n, (Oct. 31, 2019) (Japan).
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    b. In particular, what studies have been done on requirements that 
apps use an app store or operating system's own services or the appeal 
of alternative mechanisms that do not tie app access to using other 
products or services from those mechanisms?
    15. How do, or might, alternative app stores (other than Google 
Play or the Apple App Store), affect competition in the mobile app 
ecosystem?
    a. What data is there to assess how well existing alternative 
stores distribute apps, in general or specific types of apps?
    b. What unique barriers are there affecting each of the main 
operating systems (Android, iOS) that might prevent web apps or--to the 
extent allowed on Android system--alternative app stores and 
sideloading, from gaining more popularity with users and app developers 
than they currently have?
    c. Is there analysis comparing competition on iOS ecosystem (where 
app distribution is limited) to that of alternative distribution 
mechanisms on Android operating systems?
    16. What evidence is there to assess whether an app store model is 
necessary

[[Page 24138]]

for mobile devices, instead of the general-purpose model used for 
desktop computing applications?
    17. Mobile app stores act as initial screeners and responders for 
concerns about mobile app content, such as fraudulent apps and 
malware.\33\ Similar issues for screening and responding exist in other 
contexts, such as website hosting and search engine retrieval. What 
empirical data is there analyzing any unique content screening issues 
related to mobile app stores that affect competition?
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    \33\ See, e.g., App Store stopped over $1.5 billion in suspect 
transactions in 2020, Apple, https://www.apple.com/newsroom/2021/05/app-store-stopped-over-1-5-billion-in-suspect-transactions-in-2020/; 
see also Google Developer Policy Center (with policies prohibiting 
items such as impersonation of other apps) (last visited April 14, 
2022), https://play.google.com/about/developer-content-policy/.
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    a. Is there evidence of legitimate apps being rejected from app 
stores or otherwise blocked from mobile devices? Is there evidence that 
this is a common occurrence or happens to significant numbers of apps?
    b. What assessments are there of their effectiveness, or lack 
therefore, on security and privacy of end users? \34\
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    \34\ See, e.g., Complaint, In the Matter of Support King LLC 
(SpyFone.com), FTC, No. 1923003 (filed Dec. 21, 2021) (complaint 
filed with settlement decision and order), https://www.ftc.gov/system/files/documents/cases/1923003c4756spyfonecomplaint_0.pdf.
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    c. Are there disincentives or unique barriers affecting the degree 
of security and privacy protections offered by alternative app stores?
    18. Are there other areas, specific technologies or procedures, 
that offer lessons on more and less successful ways to screen out 
problematic apps? What are the characteristics of such success?
    a. Are there good examples by enterprise users? \35\
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    \35\ For more on mobile vetting and security issues, see, e.g., 
Vetting the Security of Mobile Applications, Revision 1, NIST 
Special Publication 800-163, National Institute of Science and 
Technology (NIST) (April 2019), https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-163r1.pdf; see also Mobile Device 
Security: Corporate-Owned Personally-Enabled (COPE), NIST Special 
Publication 1800-21 (Sept. 2020), https://doi.org/10.6028/NIST.SP.1800-21.
---------------------------------------------------------------------------

    b. For example, some devices allow sideloading only after warning 
the user to make sure they trust the app before proceeding with the 
download, in a way similar to how some browsers issue warnings for 
unknown websites. What material exists about the efficacy of such 
methods?
    c. What roles, if any, do independent or third party security 
testing play in the app store ecosystem?
    d. Does the current model discourage competition and innovation in 
the development or advancement of security testing?
    19. How does the existence of imposter and other fraudulent apps 
affect developer incentives or legitimate app lifecycles?

App Users

    20. What research exists regarding the number of active apps 
consumers have on their mobile devices at any one time and how often 
they try new ones?
    a. Are there generalizations that can be made based on items such 
as the cost of the app, type of broadband access or device, or even 
categories of phone users?
    21. How do most consumers find and make decisions to use apps?
    a. Is there data to show whether the usage of an app or any other 
relevant metric for performance is tied to existing brand visibility 
outside of the mobile app ecosystem?
    b. Is there data about how often people use the search feature in 
an app store, search engines through browsers, or particular ranking 
lists of popular apps or app storefronts?
    c. Is there empirical data that examines how app rankings, app 
reviews, or other objective measures of apps (for example, popularity, 
quality, or number of downloads) are used (or manipulated) to influence 
consumer choices?
    22. The E.O. asks the Department to explore ways to maximize ``user 
benefit'' with regard to competition in the mobile app ecosystem. How 
should we measure or consider user benefit?
    a. What is the appropriate scope of users for consideration? Should 
it include developers?
    b. If there are conflicts between end-user and developer interests, 
how does this affect the assessment of user benefit?
    c. How might convergence of end-users and developers--through low-
code environments, for example--affect this dynamic moving forward?
    23. Do apps that are developed for, or used by, certain communities 
(such as by income, ethnicity/race, or gender) face significantly 
different competitive challenges? What are the challenges?

Other Factors

    24. Some apps make use, or would like to make use, of additional 
mobile device components beyond those that are more commonly accessible 
(e.g., camera, microphone, contacts) in order to offer an innovative 
product or service, but the operating system or device provider does 
not allow such access.\36\ Similarly, for some apps, it might be 
essential to be able to interconnect to other hardware and services, 
such as cloud services. What are the valid security concerns and 
technical limitations on what device functionality an app can access?
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    \36\ See, e.g., Testimony of Testimony of Kirsten Daru, Chief 
Privacy Officer and General Counsel for Tile, Inc., before the 
Senate Committee on the Judiciary Subcommittee on Competition 
Policy, Antitrust, and Consumer Rights (April 2021), https://www.judiciary.senate.gov/imo/media/doc/04.21.21%20Kirsten%20Daru%20Senate%20Judiciary%20Testimony%20Final.pdf.
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    a. What factors should be considered in striking a balance between 
encouraging companies to ensure proper security measures, while 
allowing third parties to access the protected features that might 
allow for further innovation and competition?
    b. Are there specific unnecessary (e.g., technical) constraints 
placed on this ability of app developers to make use of device 
capabilities, whether by device-makers, service providers or operating 
system providers, that impact competition?
    c. Are there other means or factors to consider for mitigating 
specific risks that would not inhibit competition?
    25. What unique challenges, if any, do software updates pose for 
app competition, including updates driven by the app developers and 
those necessitated by other ecosystem changes, such as operating system 
updates? How does this impact security and costs for those apps, 
products, and services?
    26. Are there governance practices, regulations or laws that impact 
competition among certain categories of apps more than others, or their 
non-app counterparts?

Potential Actions To Increase Competition

    27. What specific measures might the federal government take to 
foster healthy competition--especially for nascent app innovation--in 
the mobile app ecosystem?
    28. What specific actions could the private sector and civil 
society take to ensure and promote healthy app competition (such as 
technical standards development or monitoring)? \37\
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    \37\ See, e.g., Adapting ahead of regulation: a principled 
approach to app stores, Brad Smith, President & Vice Chair, 
Microsoft, Feb 9, 2022, https://blogs.microsoft.com/on-the-issues/2022/02/09/open-app-store-principles-activision-blizzard/.
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Instructions for Commenters

    NTIA invites comment on the full range of issues presented by this 
Notice, including issues that are not specifically

[[Page 24139]]

raised in the above questions. Commenters are encouraged to address any 
or all of the questions above. To the extent commenters choose to 
respond to the specific questions asked, responses should generally 
follow the structure above and note the number corresponding to the 
question.
    Comments that contain references to studies, research, and other 
empirical data that are not widely available should include copies of 
the referenced materials along with the submitted comments. Commenters 
should include the name of the person or organization filing the 
comment, which will facilitate agency follow up for clarifications as 
necessary.
    Commenters are advised not to incorporate information that concerns 
business trade secrets or other confidential commercial or financial 
information as part of the comment.\38\
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    \38\ See also 15 CFR 4.9(c) (concerning the designation of 
business information by commenters).

    Dated: April 18, 2022.
Milton Brown,
Chief Counsel (Acting), National Telecommunications and Information 
Administration.
[FR Doc. 2022-08573 Filed 4-21-22; 8:45 am]
BILLING CODE 3510-60-P


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