'I wish' FTC had sued Google in 2013, Biden's acting chair says

House Judiciary antitrust subcommittee Chair David Cicilline (D-R.I.) speaks at a July 29 hearing in Washington.
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The FTC needs to be more aggressive in suing companies it believes are violating antitrust laws, acting FTC chair Rebecca Kelly Slaughter told lawmakers during a hearing Thursday — while expressing some regret over the agency's 2013 decision not to sue Google.

"I wish a complaint had been filed at the time," Slaughter, a Democrat whom President Joe Biden elevated to the acting chair role in January, said in response to a question about the FTC's past Google probe. Rep. David Cicilline (D-R.I.), who chairs the House Judiciary Committee's antitrust panel, had cited POLITICO's reporting this week about the 2013 decision, which included hundreds of pages of previously unreleased documents detailing the commission's reluctance to sue Google despite evidence of its growing dominance of markets including mobile search.

Slaughter noted that some of the issues the FTC examined nearly a decade ago now figure prominently in antitrust suits that the Justice Department and state attorneys general filed against Google last year.

"It’s incumbent on the FTC to bring hard cases in all areas, not just in tech, not just in platforms," she said. "We need to go back and take a look at our past analysis, figure out where our analytical tools are lacking, where our predictions were wrong and what we need to do better going forward."

In an earlier part of her testimony, Slaughter said: "It is clear we have a deterrence problem."

Not so fast: Republican FTC Commissioner Noah Phillips declined to weigh in on whether the agency should have brought a case in 2013. But he defended the analysis of the FTC's economists, who offered multiple reasons for opposing a suit against Google at the time.

"The agency benefits from the robust conversations between economists and the lawyers," he said. "But we are not always going to get it right."

Calls for an overhaul: Cicilline and Colorado Rep. Ken Buck, the antitrust subcommittee's top Republican, both pointed to POLITICO's stories while calling for changes in federal antitrust laws. The newly unearthed FTC documents included a top Google executive's boast in 2009 that the company’s exclusive contracts with mobile phone companies would let it “own the U.S. market.”

“Hundreds of pages of internal memoranda by the Commission’s economists and lawyers obtained by Politico demonstrate that despite significant evidence the FTC was unwilling to challenge Google’s monopoly power,” Cicilline said. “Over and over again, these examples provide case studies of why we need a massive overhaul of our antitrust laws and significant updates to our competition system."

Despite a partisan split on how aggressively to change antitrust law, Buck outlined several areas where Republicans can agree with Democrats, including providing more funding for the FTC and Justice Department and changing the legal standard to make it easier for enforcers to challenge mergers.

“Any increased funds will come with increased oversight and an expectation by taxpayers that the agencies bring the hard cases,” Buck said. “We aren’t making more money available so this type of dilatory behavior by government bureaucrats can continue.”

Not so fast: But the Colorado Republican also cautioned that while he supports antitrust changes aimed at big tech companies, he's reluctant to change the law in ways that would affect other industries.

"I want to be clear for the record that the proposals I am supporting are limited solely to Big Tech monopoly platforms," Buck said. "I am very concerned that any action we take should not impede our efforts to build a robust economy after the crushing blow we received from the pandemic. We must address the predatory conduct of the Big Tech monopolies without jeopardizing other sectors of our economy."

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