Antitrust

Please don't miss my Daily Caller Op-ed: "What if Microsoft Exited the Search Business?" -- here.

Summary of Top Takeaways from the FTC's Google Antitrust Decisions:

1. Google's U.S. search bias win establishes a broad Internet-friendly FTC antitrust enforcement precedent.
2. Google has already lost on search bias in the EU.
3. Those harmed by anti-competitive behavior are now much less likely to seek redress from the FTC.
4. The FTC effectively has redefined self-regulation to include self-enforcement too, establishing a new de-facto FTC "honor system" for potential Section 5 Internet antitrust problems.
5. The FTC's decision effectively makes the FTC Section 5 authority largely irrelevant in Internet enforcement going forward.
6. The FTC's Standards Essential Patents consent order means Google's core reason for buying Motorola has backfired and the primary perceived benefit of the acquisition is largely nullified.
7. Google's 2013 enforcement risk is centered in the EU on antitrust, privacy and intellectual property.

1. Google's U.S. search bias win establishes a broad Internet-friendly FTC antitrust enforcement precedent.

The FTC's reported closing of its Google search bias investigation with no real enforceable settlement mechanism and a special new self-enforcement antitrust precedent apparently only available to Google, raises serious questions about the integrity of the FTC's law enforcement process and whether the FTC accords Google with special treatment not available to other companies.

This matter raises many more troubling questions than the top ten unanswered questions raised in this piece, but these questions zero in on many of the most glaring irregularities for Congressional overseers, the media and government watchdogs to follow up on.

Please sing to the tune of "The Twelve Days of Christmas."

On the twelfth day of Christmas the FTC gave to me:

Twelve winkers winking

Eleven fibbers fibbing

Ten bluffs a bluffing

Nine Google's poodles

Eight flacks a flacking

Seven fawns a fawning

Six cov-er-ups

No enforce-ment! ...

Four lap-dog-gies

Three big passes

Two lame-ex-cuses

The mounting number of unprecedented, inexplicable, and troubling irregularities in the FTC's cumulative law enforcement record of Google warrants oversight by Congress and renewed vigilance by other law enforcement officials -- State Attorneys General, the DOJ, and the European Commission -- in order to maintain the integrity and deterrent value of the antitrust law enforcement process.

Each of the following sets of facts and circumstances in the FTC's law enforcement experience with Google have raised eyebrows, together there is head-shaking cumulative evidence that reeks of either special treatment for Google or political interference by Google in the process.

Consider the following evidence to judge for yourself if something appears amiss here.

Only Google has been able to get FTC commissioners to twice politically overrule staff recommendations to prosecute after in-depth antitrust investigations, in approving Google-AdMob despite "serious concerns," and in rushing to close the current Google search bias investigation without seeking the most incriminating evidence available.

Please don't miss my new Op-ed for The Hill here, entitled "Courts, Not FTC, Should Decide On Google Practices."

Simply, why shouldn't a court of law, based on the law, due process and the facts be the entity to ultimately decide if Google is guilty or innocent of deceptive search bias, not the FTC?

The number and seriousness of irregularities, deficiencies, and unanswered questions in the FTC's antitrust investigation of Google's alleged search bias warrant oversight by the Senate and House Antitrust Subcommittees and investigative reporting by the media.

Press reports indicate that some at the FTC may be questioning if there is sufficient evidence to prove in court the search bias charges recommended by FTC prosecutors. What the media surprisingly has yet to report is that the FTC still has not yet gained access to the thousands of known and likely most-incriminating Google emails and documents that Google has withheld from antitrust investigators -- per the Texas Attorney General's petition to a Federal Court last June.

Intimations that there is no search bias case to prosecute when Google clearly has stonewalled and not fully cooperated with antitrust investigators impugns the integrity of the FTC law enforcement process. These intimations also suggest that Google thinks that its case will be not be decided on the law, merits and evidence, but on political pressure it can bring to bear on the prosecution decision or settlement process.

Despite reports questioning the evidence of consumer harm in the FTC antitrust investigation of Google, it's obviously there if the FTC chooses to charge Google under its Section 5 authority which prohibits "unfair or deceptive acts or practices." The legal threshold for proving consumer harm under Section 5 versus the Sherman Act is dramatically easier for the FTC prosecution to meet. Thus press reports about Google consumer harm are implicitly more about the furious debate over which law(s) to use than it is about the provability of consumer harm.

A main argument the FTC made to win the turf battle over which antitrust agency would lead the Google antitrust investigation, the DOJ or FTC, was that the FTC had Section 5 authority, in addition to the Sherman Act anti-monopolization authority that the DOJ and FTC both share. Unlike antitrust precedent from the Sherman Act, which guides that consumer harm should outweigh any offsetting innovation or consumer benefits, Congress in Section 5 declared deceiving consumers is illegal harm of consumers.

The genuine U.S. Constitutional principle of "Freedom of Speech" in the First Amendment -- that protects us from the real and time-tested threat of governmental tyranny -- continues to get debased, devalued and misrepresented by the free-of-cost tech movement of Free-Culture, the Free-Software Foundation, Public Knowledge, and their corporate online-advertising allies who commercially-depend on free content and the no-cost sharing of others' private property. They justify their means of debasing, devaluing and misrepresenting Constitutionally-protected freedom speech because it advances their ends of an Internet information commons.

Ironically these freedom-from-cost interests just argued against a Constitutional interpretation of protecting freedom of speech in a brief before a Federal Appeals Court in opposing Verizon's challenge to the FCC's Open Internet Order, because Verizon had the temerity to assert its Constitutional right to freedom of speech, in addition to other legal and Constitutional defenses.