The murky standards for establishing consumer harm ultimately undermined the case for forceful action on the most serious charges — that Google was manipulating search results to benefit its own products while hurting competitors and limiting choice.
That drained energy from what once appeared to be an aggressive FTC push against Google, leading to modest concessions that are unlikely to be noticed by most of the search engine’s hundreds of millions of users. Consumer groups, Google’s rivals and some legal analysts say the company now will be emboldened to enhance the visibility of its own products for travel, shopping and other lucrative services in ways that will make it harder for people to find other offerings and will lead to higher prices.
But the FTC was unpersuaded by the evidence at hand. “The American antitrust laws protect competition, not competitors,” said Chairman Jon Leibowitz.
Establishing whether consumers have suffered — or are likely to suffer in the future — has long been the quicksand in the middle of U.S. antitrust cases. Wait too long to rein in monopolists, and the damage might be irrevocable. Move too fast, and the evidence of consumer harm might lack the clarity necessary to survive a court challenge.
“It has been the single issue that the antitrust system has had trouble dealing with since 1890,” said George Washington University law professor William Kovacic, a former FTC chairman. “That’s because the consumer impacts typically are mixed.”
That is even more true in the digital age, when rapid innovation creates and destroys monopolies far more quickly than when railroads and steel manufacturers took commanding market positions that lasted for decades. The speed of change has challenged Washington’s ability to act forcefully against technology companies that are increasingly battling one another in overlapping markets.
In a statement posted to Google’s company blog Thursday, chief legal officer David Drummond wrote that the FTC’s actions affirm that Google’s products are “good for users and good for competition.”
The company’s many critics, however, said that the Google that once evangelized about producing unbiased search results and speeding users off to other sites had been transformed into a predatory company more concerned with driving traffic to its own products than serving users’ needs.
FairSearch.org, a coalition of Google rivals, including Microsoft and Kayak, that lobbied for tough action by the FTC, said it would turn its attention to the European Union, where a parallel investigation is reaching a critical stage, and to the several state attorneys general probing the company. “FairSearch will continue to fight to restore truly competitive conditions to the market for search and related online services,” the group said in a statement. “No less than the future of innovation and small business on the Internet is at stake.”