The agency arrangement isn't price fixing, and the two (really one) attorney general who seem to be investigating this don't argue that it is.
(The "one" AG is the Tex. AG, who started an investigation back in June. CT AG Blumenthal also seemed to have started an investigation, but all he really did was call publisher reps to meet with him in August and issue a press release...not coincidentally in the midst of his campaign for the senate, which he won in the November election. I doubt that this was really an "investigation.")
The position of the TX AG isn't that the agency model is price fixing. Agency agreements aren't price fixing anymore than the wholesale model is price fixing (i.e., where the publishers "fix" the wholesale price of their goods).
The Tex. AG's concern is with the provisions of Amazon's and Apple's agreements with the publishers that prohibit the publishers from selling their books to other competitors at a lower cost. In other words, these "most favored nation" provisions might constitute price fixing. But the agency model doesn't.
The Tx AG is also looking into whether Amazon's "loss-leader" strategy of selling some books below cost (in the pre-agency days) may have been an antitrust violation as well.
Here's the most recent article I could find on Texas's investigation:
Quote:
On November 4, three Texas-based independent booksellers met with the antitrust division of the state Attorney General's office, in Austin, Texas, to discuss the digital content agency model and the dangers posed by below-cost pricing. Booksellers participating in the meeting were ABA Board member Steve Bercu of BookPeople in Austin, Valerie Koehler of Blue Willow Bookshop in Houston, and Claudia Maceo Sharp of The Twig Book Shop in San Antonio.
… The booksellers stressed to the antitrust division their support for the agency model for the sale of digital content because it prevents below-cost pricing and loss-leader marketing by online superstores seeking to acquire market share and to concentrate power. They also shared their belief that the agency model allows for a wide diversity of retailers in the marketplace and that it benefits consumers because it ensures the continued distribution of books by small, independent businesses with a wide variety of viewpoints.
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Not really a ringing condemnation of the agency model.