FTC’s Google Case Creates Strange Bedfellows In Congress

Dems and GOP warn FTC not to overstep authority

As the Federal Trade Commission moves closer to a decision about whether it will pull the trigger on its two antitrust investigations of Google, some Congressional leaders are coming to Google's defense.

That's not so strange, especially since Google spares little expense when it comes to lobbying Congress. But it is the players that have come to Google's defense that may raise a few eyebrows and bring new meaning to the term strange bedfellows.

The FTC is reportedly close to wrapping up two investigations of Google: one into whether the company's search results discriminate against its competitors, and the other into whether Google has been unfairly using Motorola Mobility patents to browbeat competing products.

On one side of the aisle are two Democrat representatives from Silicon Valley. On the other side of the aisle are conservative GOP senators, known for deregulatory views.

Reps. Anna Eshoo and Zoe Lofgren (both Democrats from California) jointly fired off a letter Monday to FTC chairman Jon Leibowitz, warning him that the FTC's authority to bring cases under the unfair or deceptive statute in an antitrust matter would be "a massive expansion of FTC jurisdiction." (Eshoo got $13,000 from Google this year and Lofgren, $14,500).

"Expanding the FTC's Section 5 powers to include antitrust matters could lead to overbroad authority that amplifies uncertainty and stifles growth. These effects may be most acutely felt among online services, a crucial engine of job creation, where technological advancement and small business innovation are rapid. If the FTC indeed intends to litigate under this interpretation of Section 5, we strongly urge the FTC to reconsider," Eshoo and Lofgren wrote.

Less surprising was the letter sent last week earlier from Sen. Jim DeMint (R-S.C), the soon-to-be leading ranking member of the Commerce Committee, along with nine other GOP Senators. Though the GOP Senators did not mention Google by name, it's hard to imagine what other company they had in mind.

"We are concerned about the apparent eagerness of the Commission under your leadership to expand Section 5 actions without a clear indication of authority or a limiting principle. When a federal regulatory agency uses creative theories to expand its activities, entrepreneurs may be deterred from innovating and growing lest they be targeted by government action," the GOP Senators wrote.

The Google case is one of the outstanding items FTC chairman Jon Leibowitz would like to check off his to do list before exiting the agency. Google reportedly has been given until the end of next week to respond to the FTC. The search giant has settled a number of cases with the FTC, most recently, Google agreed to pay $22.5 million to settle charges that it bypassed the privacy settings in Apple's Safari browser.