The Federal Trade Commission resolved its long-running investigation of Google by entering a commitment letter with the internet search giant. At the behest of Google’s competitors, the FTC investigated whether the company unfairly promoted its own specialized search offerings over those of other companies. The Commission focused on whether Google had created universal results pages to replace mere lists of search results in order to restrain competitors rather than to improve the quality of its offerings. In the end, the Commission concluded that the latter was true. “The totality of the evidence indicates that, in the main, Google adopted the design changes that the commission investigated to improve the quality of its search results, and that any negative impact on actual or potential competitors was incidental to that purpose.” Other search engines, the FTC recognized, had made many of the same types of changes to their search pages as Google had. That parallel conduct supported Google’s position that the innovations improved quality and were not motivated by anti-competitive animus. The matter thus fell well within the long-standing reluctance of antitrust investigators to question a firm’s product design choices.
The FTC unanimously agreed not to proceed with a case involving Google’s innovation in search page design, but other issuers were more controversial. Some commissioners were concerned about a practice known as scraping, Google’s use of content from other websites linked to a threat to block that website from Google’s search results if it objected to Google’s use of its content. Chairman Leibowitz described scraping as “clearly problematic and potentially harmful to competition because it undermines incentives to innovate,” adding “[w]hy would you create a new site for restaurant reviews if someone else can take them?”
In the commitment letter, Google agreed that websites could keep their content out of Google’s vertical search offerings without being removed from Google’s general web search results.
The Commission also investigated whether Google restrained trade by making it difficult for advertisers to deal with both Google and rival search engines. Google agreed not to restrict the way businesses use the AdWords search advertising platform in ways that made it harder for advertisers to move their ads to other search engines when advertising on different sites.
Three of the Commission’s five members criticized the decision to use a commitment letter rather than a formal consent decree. Commissioner Rosch, though personally concluding that no relief was needed, criticized the use of a commitment letter to restrain conduct because “[w]ithout a consent decree, the practices could be revived at any time without penalty.”
An investigation of these same practices by the European Commission is on-going, and experts anticipate that the European enforcement agency will press for more substantial relief than the FTC did.