Google

This analysis of the competitive facts underlying AT&T’s acquisition of Time Warner is an outgrowth of my discussion of the acquisition on NPR’s Diane Rehm Show this morning with Cecilia Kang of the New York Times and John Bergmeyer of Public Knowledge. The show can be heard here.

My main point was that the competitive facts are the best friend of this transaction.

I elaborate on that conclusion below.

The key facts lead me to believe the transaction should and will be approved, most likely by the DOJ, because of: the antitrust-benign competitive share facts in all the relevant markets; the antitrust precedents that constrain the DOJ’s ability to successfully challenge in court a vertical merger with these benign shares; and the companies have signaled they understand that if any legitimate competitive concerns arise they can be mitigated successfully with conditions and DOJ oversight of the transaction.    

If officials examine the competitive facts of this acquisition with an open mind and with due process, they’ll discover first impressions can be very misleading.

What does it tell us that no company ultimately bid to buy Twitter over the last month despite several reported brand-name interested buyers?

Twitter is the eighth-most-visited Internet site in the world; the best site in the world for real-time content; and is one of the few public companies in the marketplace that is growing revenue at a 20% annual rate – and no one even submitted a low-ball bid for Twitter? What is going on here?

Apparently, it tells us that there are only two companies in the world that could grow, leverage and monetize Twitter to make it worth roughly $20b under current circumstances – Alphabet-Google and Facebook -- and they both practically can’t buy Twitter for antitrust reasons.

Let’s analyze why.

First, Google and Facebook each individually would face unwanted serious antitrust risk.

Alphabet-Google

Currently, Alphabet-Google is embroiled in this century’s biggest antitrust case in the EU.

The FCC’s proposed broadband privacy rules are haphazard and have more random and conflicting “gaps” than Swiss cheese has holes. 

That’s because the FCC’s approach to privacy is obviously jurisdiction and technology driven, not consumer-driven.

When will the FCC put consumer privacy protection first, and join with the FTC to work with Congress to comprehensively update privacy legislation for the 21^st century?

Consumers deserve so much better than this.  

Let’s count the arbitrary and haphazard privacy gaps in the FCC’s proposed privacy rules.

Google deserves credit for trying something very difficult, and putting some big money where their mouth was.

That said Google Fiber looks like dead business model walking. 

Consider what happened this past summer.

June 22, 2016, it was announced that Google acquired Webpass, a wireless ISP. 

In July, per The Information reporting, “Alphabet CEO Larry Page ordered Google Fiber’s chief, Craig Barratt, to halve the size of the Google Fiber team to 500 people. …Mr. Page has also told Mr. Barratt to reduce the current cost of bringing Google Fiber to customers’ homes to one-tenth the current level.”

Listen to Google’s CEO Sundar Pichai when he says Google foresees a transformation from a “mobile-first world to an AI-first world,” because that is where Google-Android’s ~90% market dominance in mobile, search, and search advertising, is going to take the world -- like it or not.

As you will see, an “AI-first world” is also a “privacy-second world” and an “antitrust-cursed world.”

Just like Google’s unmatched data collection enabled it to figure out how to position itself to dominate the mobile Internet with Android’s contractual-tying over the last eight years, Google’s unmatched data collection currently is enabling it to figure out how to perfectly vertically-integrate a comprehensive-suite of home-related, products and services to dominate home-digital information and services with its just announced products: Google Home, Google WiFi, Allo, Google Assistant, Google Pixel, etc.

Naturally this Google “data-driven,” omni-integration will have big privacy and antitrust implications.

When a PR tactic masquerades as principle or sound policy a mess inevitably ensues.

Google and Public Knowledge, the two leading corporate and interest group entities respectively that are opposed to copyright in America, plotted that they could disguise their real intent to “unlock copyright licensing” and devalue the valuable “information flows” of the $200b a year U.S. pay TV industry, with a clever #UnlockTheBox consumer “gift”/sneak attack… just like Greeks did in the Trojan War using the purported “gift” of a huge wooden “Trojan Horse” as a trick to secretly enable soldiers hidden inside the horse to gain entry to the securely protected city of Troy.  

We now know that this FCC AllVid/Set-Top-Box (STB) rulemaking was not really about unlocking set-top-boxes for consumer benefit, but predominantly about unlocking copyright licenses for the nation’s most valuable video programming – to de facto, open-force more proprietary information to be free on the Open Internet.

Who thinks it wise to allow a single company to corner the global market for any set of critical inputs to the global economy -- like stocks, bonds, currencies, industrial metals, precious metals, energy resources, grains, food, or livestock -- with no regulatory oversight, transparency or obligation to be an honest broker?   

Why then, if “information is power” in commerce, society, and governing, has the world allowed Google to anti-competitively corner the global market for the world’s information?

To spotlight this extraordinary risk and exceptional lapse in sovereign accountability, my new research provides new insight into how Google has become the most powerful commercial monopoly the modern world has ever seen.  

How can the FCC imagine it is pro-competitive to help Google expand its search monopoly by illegally forcing the search neutrality principle that Google opposes as never justified, on competitive pay-TV providers, in order to divert pay-TV viewer traffic to piracy-friendly Google-YouTube’s 1.6 billion viewers?  

Multiple sources indicate the FCC is on path to include in its final proposed AllVid set-top box order a de facto FCC office of copyright licensing to try and politically paper over obvious policy and enforcement gaps in FCC authority.

It is further evidence that the “Unlock the Box” proponents pushing AllVid are really bent on “unlocking the copyrights, licenses, and contracts” that collectively protect $200b worth of annual video programming business, not the purported $20b set-top box business.

That’s because AllVid proponents continue to demand their initial outrageous and unlawful claim that the FCC should force the pay TV and video programmer industries to give Big Internet companies their $200b of video programming flows for free -- because the Internet wants information to be free.

The FCC’s big legitimacy problem here is that the FCC is not operating in a legal area where they can argue they are due broad court deference, because in this instance the law is very clear.

The FCC does not have the authority to force property owners to give away their copyrighted property for free or to forfeit their legal licensing or contract rights.

FCC and FTC meet the law of unintended consequences.

A Ninth Circuit Court decision overturned an FTC enforcement action against AT&T for “throttling” broadband data speeds by definitively ruling that the FTC did not have any legal jurisdiction over AT&T (and other common carriers) because of the explicit common carrier exemption in the FTC’s core Section 5 legal authority.