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.

First, anybody that considers the many forms of illegal speech that are unprotected by the First Amendment: perjury, libel, slander, misrepresentation, lying under oath, fraud, deceptive practices, falsifying documents, collusion, conspiracy, impersonating a police officer, stealing, vandalism, graffiti, inciting a riot, etc., will take Google's imagined blanket immunity from antitrust laws on free speech grounds with a grain of salt. Google exaggerates its "free speech" rights to protection from antitrust, just like it exaggerates its "fair use" rights to take others' property without permission.

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

WASHINGTON D.C. – In response to the new "Alliance for Broadband Competition" opposition to the Verizon-Cable spectrum transaction, the following quotes may be attributed to Scott Cleland, Chairman of NetCompetition.org:

The EU's latest round of mobile price regulation provides a golden opportunity to show how market competition produces much better results for consumers than government price regulation. Ironically, the European Parliament voted this week to lower mobile roaming charges by mid-2014 to levels that will still be much higher than America's competitive wireless market prices are today.

Per New York Times reports, the EU mandated price for making a roaming mobile voice call will be reset from 35 cents a minute today to 19 cents a minute by mid-2014, and the price for receiving a roaming mobile voice call will be reset from 11 cents a minute today to 5 cents by mid-2014. Putting this in perspective, Recon Analytics' research shows that Americans pay 4.9 cents a minute vs. 16.7 cents a minute for Europeans -- ~70% less; and because of these dramatically lower American wireless prices, Americans consumers use more than twice as much wireless as Europeans, 875 minutes of use per month vs. 418 minutes for Europeans. Simply, the EU's ~50% mandated price reductions will still have European consumers paying much more for mobile usage even if one incorrectly were to assume that competition won't further lower the market price for American consumers like it has every year.

Apparently Netflix is angling to become Silicon Valley's king of corporate welfare. We learn from a New York Times economics column advocating for an Internet industrial policy that "Netflix is trying to build a coalition of businesses to make the case for… net neutrality." And that the "online video powerhouse Netflix started a political action committee to complement a budding lobbying effort in support of the idea that all content must be allowed to travel through the Internet on equal terms" -- translation: always at no cost to Netflix.

But Netflix isn't in need of public assistance; it is America's video subscription leader with 23 million subscribers. Netflix has $3.3b in annual revenues, $1.2b in gross profits, $800m in cash, a 34% return on equity, and a market valuation multiple over twice the market's. And Netflix flexed its exceptional pricing power last year in raising its prices 60% without losing many subscribers.

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

Opponents urging the FCC to block the Verizon-Cable secondary market spectrum transaction are pushing the FCC into dangerous institutional territory, effectively goading it to: overreach its statutory authority; ignore FCC precedent, evidence, and facts; and game its own spectrum-screen process. The same FreePress radical fringe -- that goaded the FCC to flout the D.C. Appeals Court decision and pass the Open Internet Order and Data-Roaming Order -- are at it again.

The FreePress radical fringe who care not for the rule of law, are again goading the FCC to trump up some new public interest rationale and statutory theory to allow the FCC to transmogrify its limited public interest authority into unbounded authority that disregards the law, FCC precedent, or the facts. This radical manipulation of the process may be good for forwarding FreePress' anti-business, Internet commons goals, but it is not good for the institution of the FCC, which is a creature of Congress and subject to the rule of law. And nor is it good for the American public.

My Daily Caller op-ed: "Obsolete Communications Law Stifles Innovation, Hurts Consumers," puts a spotlight on how America's century-old communications law and regulatory framework is obsolete and strangles America's innovation potential.

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.

Near hysterical opponents of broadband data usage caps need to breathe slowly, drop their magnifying glass, look up and take in the big world all around them. They are not just missing the forest for the trees, they are missing the leaves, stems, branches, trees, forest and sky, because they can't take their magnifying glass off of the leaf with which they are myopically obsessed.

Broadband data usage caps are a very small, normal, and essential part of a healthy and economically-sustainable Internet ecosystem. Pricing is the central mechanism for any marketplace to balance supply and demand and to create economic incentives and disincentives for behavior that can drive costs. There is nothing wrong with pricing caps, tiers, and other pricing mechanisms that are used to manage networks, avoid network congestion, achieve a return on investment, manage a business model, differentiate a business, and/or earn a profit.

Consumer groups by definition are supposed to be protecting consumers' interests -- not be pushing a special interest political agenda under the guise of the "public interest." Let's spotlight a recent and blatant hypocrisy whereby consumer groups near-completely ignored an instance of obvious widespread consumer harm (the FCC's proposed fine of Google for obstructing its Street View wiretapping investigation), while in another contemporaneous issue, consumer groups gang-pummeled a non-issue to push a political Internet commons agenda (strongly objecting to Comcast's new market offering where XBox usage does not apply to a user's 250 Gig monthly data cap.)

Google Street View Wiretapping: Why is Google obstructing a Federal wiretapping investigation affecting the privacy of literally tens of millions of American households' -- not a consumer protection issue? How come consumer groups routinely and loudly call for FCC investigations of broadband companies' legal marketplace actions, but are silent on the obvious obstruction of a Federal investigation into Google allegedly being involved in potentially the largest wiretapping and mass invasion of citizens' privacy by a corporation in U.S. history? How is it in consumers' interest for the government to not be able to determine if Google actually violated Federal law or not?