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Since the term "price-fixing" is being thrown around, we should be careful about how we're using it. The "Agency 5" agreements may indeed restrain a certain amount of competition, but not in a way that is normally termed "price-fixing."
We normally think of anticompetitive agreements, such as price-fixing, in two ways: "horizontal" and "vertical." A horizontal restraint is one between direct competitors: for example, between different publishing houses. If two publishers said "we're both going to charge $20 for every new release," that would be a naked horizontal price-fix and almost certainly illegal per se.
A "vertical" agreement involves different steps of the production or distribution chain. For example, if manufacturer A makes widgets, and sells them to retailer B, and they agree that B will resell those widgets for $20, that is a vertical restraint. These types of agreements are sometimes illegal, but not automatically. The circumstances of the agreement must be examined carefully, and various factors considered, pro and con.
An "agency" agreement is a type of vertical arrangement that is often considered legal. An agent acts on behalf of someone else; it does not have independent authority. The publishers hiring Amazon as an agent is a little like hiring a guy off the street and telling him "go sell these books to whoever you can for $20." If the guy sold the books at a discount, he'd be violating the terms of his agency agreement.
There appears to be no evidence (of which I'm aware) that the prices of ebooks are uniform across publishers--in fact, the opposite is true: we have more variety now. Nor do I know of any direct agreements between Amazon and another retailer (e.g., Amazon and B&N agreeing with each other on retail prices). So, we do not appear to have a case of "horizontal" price-fixing here. Rather, we have a vertical restraint in the resale market. Amazon, by switching from an independent reseller to an agent, no longer has the ability to compete with other resellers by cutting prices through reducing its own margins.
However, it's important to note that no other retailer sells Kindle-format ebooks anyway. There is no direct competition to Amazon, only indirect competition from paper books and ebooks in incompatible formats. And the publishers have a legal monopoly, via the copyright laws, on their content, so they have more leeway regarding how their works are ultimately sold.
Now, with all of that said, I find the "Agency 5" agreements unfortunate, because so far they have led to price increases in some cases. I prefer Amazon's having the ability to cut prices by reducing its margins; I like lower prices. Accordingly, I think it's appropriate for regulators to go through the (detailed, fact-dependent) analysis of whether these restraints unreasonably harm competition. But calling them "price-fixing" is not really accurate, unless there's something going on we don't know about.
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