Google could escape most serious antitrust claims due to lack of evidence

Punishment or pardon?

Google may walk out unscathed - or with nothing more than a few scratches - from an ongoing Federal Trade Commission (FTC) antitrust investigation.

According to sources speaking with Bloomberg, the FTC is unsure it has enough evidence to sue Google over the most serious allegations that it used its search algorithms to unfairly favor its own downstream businesses over competitors.

Federal regulators are also reportedly considering whether the benefit to consumers of such actions outweighs any potential harm suffered by competitors, including NexTag and Kayak Software.

The FTC, which won the right to probe Google over the Department of Justice's antitrust division, is apparently feeling the heat to pull out some Google concessions, though whether it can do that is now being called into question.


If the FTC is unable to charge Google with violations related to its search practices, the teeth are practically pulled from its case.

TechRadar spoke with Richard Brosnick, an antitrust attorney with the Butzel Long law firm, about the investigation and possible outcomes last week.

Brosnick, who's litigated before and against the FTC on a variety of antitrust matters, said Google will likely offer a settlement rather than go through with a lawsuit.

With this new development, Google may not even need to offer any concessions of substance, at least not ones that fundamentally impact its search practices.

The FTC's investigation is also said to be looking at exclusive search service agreements Google offered online publishers as well as whether it misused certain standard essential patents.

Heat from all sides

Bloomberg's report came a day after two U.S. Congresswomen - Anna Eshoo and Zoe Lofgren, both California Democrats - sent a letter to FTC Chairman Jon Leibowitz expressing "great concern" over the information leaks coming "from those inside the [FTC's] antitrust investigation of Google."

The leaks, the lawmakers wrote, point to the FTC turning to Section 5 of the FTC Act, a standard that lets the agency investigate and prevent unfair and deceptive trade practices, to avoid proving some elements of a claim required under Section 2 of the Act.

"Such a massive expansion of FTC jurisdiction would be unwarranted, unwise and likely have negative implications for our nation's economy," the congresswomen's letter read.

It went on to lay out what impact an expansion of FTC authority would have on job creation and business development.

"Expanding the FTC's Section 5 powers to include antitrust matters could lead to overbroad authority that amplifies uncertainty and stifles growth.

"These effects may be most acutely felt among online services, a crucial engine of job creation, where technological advancement and small business innovation are rapid.

"If the FTC indeed intends to litigate under this interpretation of Section 5, we strongly urge the FTC to reconsider."

They also called the release of "sensitive details" from an internal draft of the FTC staff's report "irresponsible" and said it "potentially compromises the investigation."

Both congresswomen have received campaign contributions from Google. Their letter makes them the latest members of the House to weigh in on the probe.

Last month, Congressman Jared Polis urged the FTC to keep its nose out of Google's services or risk slowing innovation and facing backlash from lawmakers.

Earlier reports indicated the FTC would end its inquiry before the year is up, so stay tuned for more out of Washington.

Michelle Fitzsimmons

Michelle was previously a news editor at TechRadar, leading consumer tech news and reviews. Michelle is now a Content Strategist at Facebook.  A versatile, highly effective content writer and skilled editor with a keen eye for detail, Michelle is a collaborative problem solver and covered everything from smartwatches and microprocessors to VR and self-driving cars.