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EpicRandy on 11 May 2023
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Ryuu96 said:

Pretty much what Randy said, a lot better than I can put it.

I think this is a bad angle to argue on, I'm about 99% sure that CAT won't give a damn about CMA trying to impose Worldwide remedies because it's perfectly legal. CAT only determines; Rationality, Legality or Procedure Breaking. What CMA demands is legal and likely considered rational too. Companies do all the time use Worldwide remedies based on demands of local regulators so I can't see how it would be deemed irrational.

Rationality is "so irrational that no rational person would come to the same conclusion"

Microsoft's best shot is trying to get CAT to deem Cloud Gaming as not a market on its own, thus that would throw out CMA's whole SLC.

If they deem Cloud Gaming as not a market then you can argue that CMA's decision was irrational, I suppose.

@bold, I think this path is close, the EU has found similar concerns over the same market de facto giving CMA credence to also define this as its own market.

I think MS's argument will be more in line with:

  • The evaluation the CMA did of the current significance of the size of Xcloud is irrational.
  • The evaluation of the CMA having defined Xcloud as a major selling point of GPU is irrational. 
  • The CMA did not sufficiently acquire information in regard to Xcloud usage which they could easily have requested and obtained therefore amounting to a breach of procedure.
  • Given the fact that CMA could have easily obtained more precise information from MS, using a speculative one is irrational.
  • The CMA did not give proper feedback to MS on their remedies proposal.
  • The CMA did not properly convey the seriousness of the Cloud SLC after dropping the Console SLC.
  • The CMA mention that remedies that would be hard to track is irrational.
  • The CMA mentions that MS could substantially raise the game pass subscription fee negating consumer benefits is irrational given our goal.
  • The CMA did not properly define the possibility of a rise in GamePass fee as a concern prior to their final conclusion amounting to a breach of procedure.
  • The CMA only weighs in the benefits of Game Pass vs the cons of the Cloud SLC is irrational as they should have also included the benefits to the much bigger console markets along with the subscription service one.
  • Giving the CMA found benefits to much bigger and more impactful markets (Consoles), refusing to consider behavioral remedies for a substantially lesser market goes against their own mandate for consumers of the UK and so is irrational.
  • etc...

They'll make as many such arguments as possible and every win will grant them specifics instruction from the CAT to the CMA. making it quite difficult for them to reach the same conclusion.

Also, I'm yet to find any independent expert claiming the CMA decision is sane or logical which should make it easier to portray irrationality in this case.

Last edited by EpicRandy - on 11 May 2023