Industry Observers Disagree on Whether FCC is Likely To Look More Closely at Google Search

Free State Foundation President Randolph May raised the issue in an April 16 blog post in which he asked whether Wheeler would act to protect “future Googles” from anti-competitive behavior. Carrier officials said they believe an investigation is at least plausible. May acknowledged his post wasn't based on any knowledge of FCC activity on Google Search. Google had no comment.

“Several commentators have long noted that net neutrality could beget search neutrality,” said Daniel Lyons, associate professor at Boston College Law School. “The ostensible purpose of the net neutrality proceeding was to regulate broadband companies because they had the ability and incentive to distort upstream competition for Internet content and applications -- a charge that could just as easily be leveled against Google, particularly given the low evidentiary bar that the commission established in the net neutrality order.”

Lyons said the FCC’s “broad interpretation of its Section 706 authority could arguably reach at least some edge providers like Google that occupy strategic positions in the Internet ecosystem.” Apple's control over the App Store “is a similar bottleneck that could eventually find itself under the microscope,” he said.

In the 2010 and 2015 net neutrality orders, the agency “never articulated a limitation of its own powers under Section 706, or other sections for that matter,” said Robert McDowell of Wiley Rein, who voted against the 2010 order as an FCC member. “When reading the [Communications Act] Title II order, it is clear that the FCC now sees itself as the dominant regulator of the entire Internet ecosphere with no fence around its potential jurisdiction.” Advances in technology and market forces “have blurred the lines among content, application and network providers,” McDowell said. “Now that the commission has classified information service providers as telecom service providers, some 'tech' companies that used to think they were immune from FCC rules are fearing they will have to live under mandates from the very Frankenstein they helped create. The old adage that 'regulators like to regulate' is more true now than ever."

“Certainly there were many hints in the Title II order that the FCC planned to use its new-found powers to become very deeply involved in consumer privacy issues,” said Larry Downes, project director at the Georgetown Center for Business and Public Policy. “Google has its own [content delivery networks] and transit agreements, as well, and these seem likely to come under scrutiny as part of the new but undefined interconnection authority the order claimed.”

The net neutrality order raised many questions with its “bizarre redefinition of Public Switched Telephone Network to include any service that uses IP addresses” (see 1503120053), Downes said in an email. “This give[s] the FCC, if that decision survives in court, unlimited authority to apply its ‘just and reasonable’ post-hoc rate regulation and open-ended administrative adjudication process to pretty much anything, including Android and the full suite of Google search, mail, shopping, payment and other services.”

Public Knowledge Senior Vice President Harold Feld said he sees no possibility the FCC will investigate Google Search and whether it has engaged in anti-competitive behavior. "I find it more likely that Tom Wheeler will lead a unicorn hunt or go back in time to stop the Lincoln assassination than that the FCC will in any way, shape or form attempt to exercise any form of antitrust jurisdiction -- or any other form of jurisdiction -- over Google Search,” Feld said. The FCC is not a generalized antitrust agency, Feld said. “It has authority under the Sherman Act and the Clayton Act to investigate antitrust violations by common carriers -- which Google is most certainly not,” he said. In its 80-year history, "the FCC has never once exercised its antitrust authority or investigated any company under its jurisdiction for a violation of the antitrust laws. It is utterly unimaginable to me to believe that Wheeler would break with that tradition and do so now."

Michael Calabrese, director of the New America Foundation’s Wireless Future Project, also questioned whether an FCC probe of Google Search is likely. “One of the misconceptions that opponents of net neutrality continue to promote is the notion that Title II protections have any reach beyond broadband Internet access providers,” he said. “One of the positive features of Title II reclassification is that it makes it absolutely clear that edge providers of applications, content and services are not subject to net neutrality rules, nor should they be. The FTC has jurisdiction over a wide range of conduct by Internet application and content providers that are not common carriers, making the FCC’s involvement both unlikely and unnecessary.”

The Information Technology and Innovation Foundation separately issued a report last week raising concerns about FCC authority to regulate the treatment of consumer proprietary network information (CPNI) by broadband providers following Title II reclassification, unrelated to May’s blog post, said ITIF telecom policy analyst Doug Brake. He said he hasn’t heard about any potential FCC actions related to Google but said Enforcement Bureau Chief Travis LeBlanc’s recent comments about the agency’s interpretation of its authority under Communications Act Section 222 to regulate the use of CPNI are a cause for concern. “If the FCC wants to be reaching into this new area of jurisdiction as broadly as they can, they potentially have a really broad reach here,” Brake said. LeBlanc pointed to Google’s planned rollout of TV service in Kansas and its related potential to produce targeted TV ads through data collection as an area of “convergence” of big data over multiple platforms that raised privacy questions (see 1503250055). DLA Piper high-tech and privacy lawyer Jim Halpert also noted LeBlanc’s recent privacy enforcement statements but said he wasn’t sure potential scrutiny of Google’s pay-TV ad practices would be any more invasive than scrutiny of the practices of other TV companies.