Congress Members Watching Google’s Appeal of $5 Billion EU Fine Mull Next Steps

There are many complex issues regarding the concentrated power of tech platforms like Google and Facebook, Johnson continued: “We’re going to have to sort through this.” Different jurisdictions handle situations differently, he added, and there’s no way to predict the outcome of the antitrust case against Google. He said the tech industry “better” respect FTC authority. “Most people in the private sector respect the fact that the federal government rules over them, and in this case it’s appropriate. I’m a small, limited government kind of guy, but you do need regulation in a number of areas.”

“If there are violations, [the FTC has] to pursue them, and should investigate,” Senate Commerce Committee member Amy Klobuchar, D-Minn., told us. “If they investigate it, then their authority will be respected.” Klobuchar introduced two pieces of legislation on privacy and digital ad regulation that would rein in the tech industry (see 1804240046 and 1805240052). The FTC didn’t comment.

The EU based the fine on 5 percent of the average daily worldwide turnover of Alphabet, Google's parent company, according to the European Commission announcement. Former antitrust litigator Alicia Downey of Downey Law said it’s possible that where EU regulators see antitrust infringement, U.S. regulators might not see a violation. The largest antitrust fines in the U.S. are levied for illegal price fixing in which there's criminal behavior and clear consumer harm, she said. EU regulators have much broader authority, she said, and Europeans see abuse of market dominance in the same way they view criminal price fixing. She noted that the EU’s enforcement “inspired” Missouri Attorney General Josh Hawley (R), who brought his own probe (see 1807250027). “The U.S. regulators I know are well aware of the difference in standards and enforcement priorities” between the U.S. and the EU, she said.

“U.S. regulators may not see a violation under U.S. competition law in the same case where the EU would see a violation under EU competition law,” emailed International Center for Law & Economics Associate Director-Innovation Policy Kristian Stout. He said U.S. antitrust regulators are guided by impacts on consumers. Similar examples of enforcement in the U.S. show EU enforcers are “much more willing to find an abuse of dominance under arguably procompetitive facts,” he said.

Senate Consumer Protection Subcommittee Chairman Jerry Moran, R-Kan., with jurisdiction over the FTC, said the agency should do a “thorough and appropriate” investigation. “I don’t know what the investigation will show, but certainly it’s important for the FTC and others to pursue, particularly this question of privacy,” Moran said. Asked about the tech industry’s level of respect for FTC authority, Moran believes the agency is “taken seriously.”

House Commerce Committee member Gene Green, D-Texas, said that “even for Google," $5 billion is "a lot of money.” Committee member Doris Matsui, D-Calif., said the EU is “leading the way” on regulating the tech industry, and “I think we’re looking at that to see what’s happening there. I find it interesting to see something like that happening, and now people here, policymakers, are responding to that to see where it’s going to take them.” The FTC is at the forefront of widely discussed issues of antitrust and data security protection, she said, and the agency needs additional resources to help enforce its regulatory authority. The commission and tech industry are “under the microscope now,” she said. “People now understand that whatever they put out there is just for sale in essence.”