Antitrust

Google's latest claimed antitrust get-out-of-jail-free-card is that Google is effectively immune from antitrust prosecution because it has a constitutional free speech right to free speech to rank and present its search results any way it wants, per a new Google-sponsored white paper by UCLA Law Professor Eugene Volokh. This effort is much more of a political argument and PR wish than a legal or antitrust argument, because neither the right to free speech nor any other right in the Constitution's Bill of Rights confers immunity from the rule of law foundation on which the rest of the U.S. Constitution rests. There are many reasons to be skeptical of Google's blanket claims of antitrust immunity via its free speech rights.

FOR IMMEDIATE RELEASE

May 14, 2012

Contact: Scott Cleland 703-217-2407

Alliance for Broadband Competition Really Seeks Broadband Regulation

Verizon-Cable spectrum transaction promotes competition & the public interest

The FCC's Google Street View wiretapping investigation proved that Google's public representations it was just a mistake one rogue engineer -- that the FTC and foreign law enforcement relied upon to close their investigations -- were untrue. Going forward, law enforcement must remember the old adage: "fool me once, shame on you; fool me twice, shame on me."

I. Top Ten List of Untrue Google stories

Google's poor and defiant track record in respecting government agreements and settlements is likely one of the reasons the FTC hired an undefeated former Federal prosecutor and litigator to lead their Google antitrust probe and potential litigation against Google. The EU and the FTC are naturally exceptionally skeptical about negotiating an antitrust settlement with Google, given the substantial evidence that shows Google is consistently less-than-trustworthy in abiding by its agreements with Governments.

Specifically, the evidence shows that Google has not abided by either of its privacy agreements with the FTC concerning Street-View WiSpy or Google-Buzz, nor has Google fully-abided by its criminal Non-Prosecution-Agreement with the DOJ concerning its advertising of illegal prescription drug imports. In addition, Google attempted to broadly game the justice system in negotiating a Google Book Settlement that would have rewarded it with a partial monopoly for its mass copyright infringement.

Compare Google's law enforcement record here with Google's public representations below to determine for yourself if they match up.

Confidential Memorandum:

To: All 11,342 Google PR/Spokespeople

From: Brandi Sparkles, Google PR Chief & Googlerati Whisperer

Subject: PR Statement/Strategy in Advance of EU's Monopoly Charges

We expect the European Union's antitrust authority to issue a Statement of Objections against Google shortly, which will charge Google with being a monopoly that anti-competitively ranks its own content #1 while ranking its competitors' content where few will find them.

Reading through The American Antitrust Institute's white paper on Verizon-Cable, it is striking how little analysis is relevant to antitrust/market-competition and how it is basically a thinly-veiled tacit pitch for the DOJ and the FCC to pursue an aggressive industrial policy for the wireless industry.

The white paper presumes that because the DOJ blocked the AT&T/T-Mobile merger to preserve T-Mobile as a disruptive fourth wireless competitor, and because T-Mobile now claims it needs more spectrum, that the government should intervene somehow to effectively redirect the spectrum to T-Mobile and away from Verizon.

Google often acts as if it thinks it is above the law. That may be the most plausible explanation for why Google is under antitrust investigation on five continents, has had 35+ privacy scandals, and has been sued for eight different kinds of infringement/theft from most every content industry.

I. Cover-ups

Two top Google executives responsible for Google's corporate acquisitions unwittingly made it clear recently that Google, as a corporate entity, does not take the risk of antitrust enforcement very seriously.

First, Marcella Butler, Google's Senior Director, Corporate Development, M&A Operations and Integration, ”who manages how new firms are integrated into Google" recently told Slate.com: “We do not slow down our integration efforts at all during that time” i.e. during a DOJ antitrust review of a major transaction.

Such a surprisingly blanket absolute statement from a Google insider who is intimately familiar with how Google actually operates during DOJ merger antitrust reviews, at a minimum raises concerns with antitrust authorities about Google's respect for, and compliance with, antitrust law.