Google

Google’s EU antitrust defense suffers from “Goobris,” a new word because “hubris” is not big enough to describe the behavior of a single company that denies it is dominant in Europe when it commands >90% share of search, >90% share of search advertising in part via Google Analytics 98% share of ad tracking of Europe’s websites,  and 5 of the top 6, billion-user, universal web platforms: search, video, mobile, maps, and browser.

Will the FCC create an Internet “Do Not Track” list like the FTC created the “Do Not Call” list enjoyed by three quarters of Americans?

In ruling the Internet to be subject to common carrier consumer protection law, the Obama FCC’s recently passed Open Internet Order applied common carrier privacy law (Section 222) to Internet telecommunications as part of the FCC’s unilateral efforts to modernize communications law for the 21^st century.

The Obama FCC’s Open Internet Order also ruled that the Internet now encompasses the Public Switched Telephone Network (PSTN) and that an IP address is the functional equivalent of a telephone number.

Thus, logically it could follow that information that’s considered legally private in the telephone world now could be considered legally private in the Internet world.   

This central consumer protection question should come up this week as the FCC hosts a Section 222 public workshop to explore the FCC’s “role in protecting the privacy of consumers who use” the Internet.

What is Section 222?

It is a common carrier provision of the Communications Act entitled “Privacy of Customer Information.”

The US-EU “competition” of protectionist digital industrial policies -- U.S. Title II net neutrality vs. the EU’s emerging “platform neutrality” plans -- creates an ironic backdrop to negotiations for the US-EU Transatlantic Trade and Investment Partnership (TTIP) “free” trade agreement. Heightening the irony, the Obama Administration, not the European Commission, has been the protectionist digital industrial policy leader, trailblazing the political path for the EU’s Single Digital Market to follow.  

At least on the digital markets front, TTIP will be much less a commercial “free” trade negotiation and much more a political “fair” trade negotiation.    

The U.S. has long set the tone and trajectory for this digital “fair” trade dynamic in championing net neutrality to protect its Silicon Valley national champions, Google, Facebook, Amazon, Apple, Netflix, etc., and by skewing antitrust enforcement to benefit Google and Silicon Valley.

Facts belie Google’s rote denials that it is dominant, and that favoring its own content over competitors is anti-competitive in the EU. As this post will prove below, the public facts are overwhelming that Google is dominant and self-dealing.

But first, look closely and witness that the entirety of Google’s antitrust defense is essentially political -- that the EU’s antitrust law and precedent shouldn’t be different or tougher than America’s. Specifically, Google essentially is arguing that the EU shouldn’t have a lower market share threshold to be legally considered dominant and the EU shouldn’t have presumption in law that if dominant, the dominant company has “a special responsibility not to allow its conduct to impair competition on the common market.”

That’s wishful whining; it is not a legal antitrust defense in Europe.

It is only fitting that Google faces a Danish prosecutor in EC VP Margrethe Vestager. That’s because Google currently is acting out the role of emperor in the most famous Danish fable by Hans Christian Anderson, the “The Emperor’s New Clothes.”

Google’s biggest problem is not being charged with violation of antitrust laws in Europe; its biggest problem is a gross violation of trust of its roughly two billion users.

Just when Google needs it most, its political bag of tricks to dodge antitrust enforcement may be running out.

Reports that the EC is likely to issue a Statement of Objections ruling soon -- that Google is >90% dominant in search and search advertising and has illegally abused that dominance by promoting Google’s content and demoting competitors’ content -- indicates Google finally may be facing a global antitrust inflection point.

A tough EC SO would be a game-changer for Google, like the 2000 U.S. District Court case that ruled Microsoft an anti-competitive monopoly, proved to be a game-changing, global antitrust inflection point for Microsoft.  

Substantively on the merits of the EC antitrust case, Google appears to have little room to maneuver. The EC effectively agrees with the FTC’s staff antitrust conclusions per the leaked FTC staff report. That finding is highly problematic for Google because: EU competition law is much tougher than America’s; Google’s relative >90% market dominance in Europe is much greater than in the U.S.; and Google doesn’t have the dominant political influence over Europe that it does with the U.S. Executive Branch.

The New York Times’ editorial, “Global Threats to Net Neutrality,” scolds the world for not following the FCC’s nationalistic concept of net neutrality.

They feign shock and indignation that Europe and India would dare think of politically doing what the FCC has done and impose their own national industrial policies -- under the convenient political cover of “net neutrality.”

America’s elites naively imagine that other countries’ authorities don’t “get the joke” of the FCC’s politically-contrived net neutrality policy.

Other countries’ authorities are not as gullible and pliant as American elites imagine them to be.  

They know “net neutrality” has become an increasingly vacuous political slogan, whose definition conveniently changes meaning like a chameleon changes colors.

They know the FCC is pressuring them to do as the FCC says and not as the FCC does on net neutrality.

The FTC’s politically messy closure of the FTC-Google antitrust investigation in 2013, chronicled in “Googlegate: the FTC Cover-up Evidence Piles Up,” is not the only major Federal investigation into Google’s business practices that Google’s political influence appears to have made go away in 2013.

The FTC’s Googlegate cover-up problem is that while the FTC may be telling the truth, they apparently are not telling the whole truth and nothing but the truth.

Don’t miss the brief summary below of the role political influence played in the politically messy closure of the FTC-Google antitrust investigation in 2013.

The evidence of FTC special treatment for Google, coupled with an apparent FTC cover-up of the political influence that may have defanged the FTC’s investigative process, is particularly relevant to: the European Commission’s current antitrust investigation of Google’s abuses of its <90% dominance in Europe; reported U.S. Senate oversight interest in the FTC’s closure of the Google investigation; and Mississippi AG Jim Hood’s State-led antitrust and consumer protection investigation of Google.

Please read my latest Daily Callerop-ed entitled: “Unnecessary Collateral Damage from FCC Title II Internet Regulation.”

It explains why collateral damage will begin to pile up because the FCC’s Title II Internet regulation is so destructive and unnecessary.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]