Antitrust Law Daily Wrap Up, ANTITRUST NEWS: No Senate antitrust hearing planned on FTC probe of Google, (Mar 31, 2015)

By Lynn Stanton,TR Daily

Senate Judiciary antitrust, competition policy, and consumer rights subcommittee Chairman Mike Lee (R., Utah) has no plans to hold a hearing on the Federal Trade Commission’s 2011–2012 investigation of Google, Inc.’s search practices, which ended with the agency concluding that Google’s search practices did not violate U.S. antitrust law or the FTC Act’s prohibition against unfair business practices, according to a spokesperson for the senator.

Interest in the three-year-old FTC investigation spiked recently after a March 25 Wall Street Journal article suggested that Google’s ties to the White House might have played a role in the FTC’s decision to close the investigation without bringing any charges against Google. Google did make a voluntary commitment to allow websites to opt out of “scraping” and to allow businesses to use tools to manage ad campaigns across multiple advertising platforms.

Chairman Lee is interested in how FTC staff came to disclose confidential information in a report produced in response to a Freedom of Information Act request regarding the agency’s investigation of Google, and in any conversations that may have taken place between the White House and either Google or the FTC. At this time, however, he has no plans for a hearing, the spokesperson said.

Another source indicated that various options for obtaining information from the FTC on those issues remain open, including seeking a briefing from the agency or sending a written letter.

In response to a reporter’s question on the reports that Sen. Lee is planning to investigate the White House role in the FTC’s decision not to bring charges, White House Principal Deputy Press Secretary Eric Schultz said yesterday that “the FTC is an independent organization which makes decisions independently.” He added that the White House meets “with business leaders all the time.”

Last week, in the wake of the Wall Street Journal article, the three current FTC Commissioners who took part in the unanimous 2013 decision to end the investigation of Google’s search practices issued a statement defending their decision-making process.

“Based on a comprehensive review of the voluminous record and extensive internal analysis, of which the inadvertently disclosed memo is only a fraction, all five Commissioners (three Democrats and two Republicans) agreed that there was no legal basis for action with respect to the main focus of the investigation—search,” wrote Democratic Chairwoman Edith Ramirez, Democratic Commissioner Julie Brill, and Republican Commissioner Maureen Ohlhausen. Ms. Ramirez was a commissioner but not chairwoman at the time of the decision.

“Contrary to recent press reports, the Commission’s decision on the search allegations was in accord with the recommendations of the FTC’s Bureau of Competition, Bureau of Economics, and Office of General Counsel,” they added.

They noted that on the same day the agency closed the search investigation, it announced a settlement agreement with Google barring the company from seeking injunctions and import-exclusion orders based on standard-essential patents which its Motorola Mobility subsidiary previously made commitments to license on “fair, reasonable, and nondiscriminatory” (FRAND) terms.

The Wall Street Journal article “makes a number of misleading inferences and suggestions about the integrity of the FTC’s investigation. The article suggests that a series of disparate and unrelated meetings involving FTC officials and executive branch officials or Google representatives somehow affected the Commission’s decision to close the search investigation in early 2013. Not a single fact is offered to substantiate this misleading narrative,” the FTC commissioners said.

“Finally, we regret the inadvertent disclosure of confidential documents and information in response to a Freedom of Information Act request. The Commission takes seriously its obligation to maintain the confidentiality of business and other sensitive information provided to the agency by all parties involved in our investigations. We are taking additional steps to ensure that such a disclosure does not occur in the future,” they concluded.

Nevertheless, the Wall Street Journal reported today that Sen. Lee plans to conduct a preliminary inquiry to determine what conversations took place between the FTC and Google during the investigation. Lee could later expand the inquiry into include conversations White House personnel had with the FTC and Google, according to people in Lee’s office, the Journal said.

News: Antitrust FederalTradeCommissionNews