Ohio Attorney General Dave Yost says a Delaware County Common Pleas Court has scheduled a trial for his "first-of-its-kind" lawsuit claiming Google is a common carrier subject to government regulation and should be compelled to produce "fairer results." But that trial isn't coming anytime soon.

The court has set May 14, 2024, to hear Ohio's complaint, which was filed in June 2021, so the wheels of Justice aren't exactly keeping up with the speed of high-speed internet.

The suit says that Google needs to be treated as a common carrier because it dominates internet search domestically and globally and, as a result, there are high barriers of entry to its competitors.

That includes preventing Google from self-preferencing its search results.

The suit says that the more Google is used, the better its search becomes, and the more entrenched its market power becomes in turn.

"Because Google Search is the most used search engine, its algorithms are the most refined and is perceived to generate the most relevant results," the suit says. "And because Google Search is perceived to deliver the best search results, it becomes more used in the future, further refining the search relevancy algorithms. Thus, Google’s dominant market position allows it to continue to refine its search algorithms to render Google with a competitive advantage over other search engines, leading to more market dominance by Google Search."

The suit says it is not arguing that dominance is bad, only that it is a fact, and one that the government needs the power to address through regulation, and should be able to because search is properly classified as a common carrier/utility under Ohio law.

It does suggest Google is using that dominance unfairly by intentionally disadvantaging competitors and favoring Google products over organic search results.

Yost says the suit is necessary to let consumers know Google is a common carrier under Ohio law, and to make sure that Google Search "does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce."

"By manipulating search results to self-preference its own products, Google is tilting the playing field against consumers and against emerging competitors,” Yost said. “It's time to bring those unfair practices to an end," says Yost.

Back in May 2022, Delaware County Judge James Schuck refused Google's request to throw out the suit, signaling he thought a case might be made for common carrier status. ■

Cable and satellite operators said they aren't looking to prevent broadcasters in "truly short" smaller markets--ones that lack a full complement of affiliated stations--from affiliating with two of the top four-rated TV networks in the market, but said broadcasters are stretching the definition of "short" to conceivably include markets like Boston. 

They also said it is a stretch to believe broadcasters need dereg to remain viable, but if they are in such straights that they need a government bailout in some form, they should get a government subsidy rather than bleed MVPDs via retransmission consent fees, and accept common carrier regs in the bargain.

Also Read: NAB, ATVA Renew Retrans Battle

In reply comments to the FCC's quadrennial ownership rule review, the American Television Alliance, whose members include ACA Connects and Dish, said that the FCC has no duty to subsidize broadcasters.

The FCC is charged with regularly reviewing its ownership rules, but given the legal back and forth over the rules, it is a little behind on the 2018 review, which it is currently working on.

Also Read: NAB Says FCC's Own Policies Hurt Media Diversity

ATVA members want the FCC to close loopholes that have allowed broadcasters to create duopolies, triopolies and even quadopolies, they said.

While broadcasters cite a local news "crisis" in pushing for broadcast deregulation, ATVA said no such crisis exists and, even if there were one, consolidation is not the answer.

Broadcasters said they need more regulatory flexibility to remain economically viable among a sea of unregulated and more lightly regulated video options; ATVA said the largest broadcasters continue to reap considerable profits.

Also Read: Supreme Court Overturns Smackdown of Broadcast Dereg

"If broadcasters now want the government to “ensure” their profitability in perpetuity as if they were a public utility, then they should seek funds from taxpayers generally (rather than from a shrinking base of MVPD subscribers)," ATVA told the FCC. "In exchange, they should accept public utility regulation, such as making their signals universally available on all platforms at regulated prices and without interruption."

A New York court has blocked a law that would have required ISPs to provide low-cost broadband to low-income households, issuing an injunction that temporarily blocks the enforcement of the new law and signaling that the ISPs are likely to win the underlying case that the law should not go into effect at all.

The court signaled that ISPs are likely to prevail on the argument that imposing such rate regulation was a form of common carrier regulation that conflicted with the FCC's most recent decision that internet access is a Title I information service not subject to common carriers regs, and so the New York State law is preempted. "To be clear, the ABA is rate regulation, and rate regulation is a form of common carrier treatment," said Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York.

Seeking the injunctions were ACA Connects, CTIA, The New York State Telecommunications Association, USTelecom, NTCA-the Rural Broadband Association, and the Satellite Broadcasting & Communications Association.

Affordable Broadband Act was to have gone into effect June 15. It would require ISPs in the state to offer low-income households high-speed broadband--at least 25 Mbps download speeds-- for $15 per month, or of 200 Mbps for no more than $20. About 2.7 million households would qualify, or more than a third of all the households in New York. The service had to be offered as a standalone and must be advertised and promoted so people know it is available.

Prices could be raised according to a statutory formula, but only once every five years.

The associations sued to block the law April 30 and sought the injunction May 6.

In granting the injunction, Judge Hurley also agreed with ISPs that they would suffer irreparable harm--potentially facing civil penalties or losing their franchise if they don't comply with the law, or if they do, having to supply broadband at a loss, which would "raise advertising expenditures, impose administrative costs due to providers’ need 'to develop a system for validating customers’ eligibility,' force them to cancel preexisting business plans for upgrades to, and expansion of, their broadband networks, and inflict reputational harm," said the court.

The court concluded the harm was actual and imminent not remote or speculative, one of the tests for a preliminary injunction.

Hurley said the threat of monetary harm was most persuasive argument since trying to redress that harm later by getting money back from the state government would be difficult since it has sovereign immunity. "Though monetary damages would usually supply an adequate remedy at law negating the availability of preliminary injunctive relief, the harm takes on special import where, as here, the Eleventh Amendment precludes redressability."

ISPs are already offering a variety of low-cost broadband plans using the FCC's Lifeline broadband subsidies, and will be offering more with COVID-19 aid money.

Notably absent from the suit was NCTA-the Internet & Television Association. A spokesman had no comment on the injunction and said NCTA had not signed on to the suit because "plenty of others already had."

Conservative Supreme Court Justice Clarence Thomas has made it pretty clear he would consider applying common carrier regulations to dominant edge providers like Google and Facebook.

"There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner," wrote Thomas this week. "The analogy to common carriers is even clearer for digital platforms that have dominant market share."

Also Read: Big Media Takes on Big Tech

Historically, it was ISPs being branded the gatekeepers and potential suppressors of online speech, in that case access that was equated with speech. But social media companies, with dominant market shares and revenues rivaling the GDP of many countries, and the ability to control access to their dominant platforms, are now under the magnifying glass as never before.

Thomas has clearly been pondering, as have many in Washington on both sides of the political spectrum, whether edge providers have gotten sufficiently powerful that the dominant ones need to play by a new set of rules, or in this case an old one.

Thomas wrote a lengthy concurrence to the Supreme Court's less-than-a page decision to remand as moot a challenge to President Trump for blocking some responses to his Twitter account. The President was sued by several users he had blocked and the Second Circuit had ruled the President could not do that because the comment threads were a First Amendment-protected public forum. But since Trump is no longer President, the Supreme Court vacated the Second Circuit decision.

Also Read: Klobuchar Introducing Big Tech Antitrust Bill

But Thomas, noting that Twitter had done its own blocking by pulling Trump permanently off its platform, wanted to discuss the oddity of calling something a public forum when a private company can pull the plug on it for any reason or no reason at all.

That control clearly troubles Thomas. "Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties," he writes, then suggests there are antitrust issues that have flown under the radar, which puts him in the same camp as Democratic senator Amy Klobuchar (D-Minn.), chair of the powerful Senate Antitrust Subcommittee.

Also Read: Attorney General Pledges Strong Antitrust Enforcement

"Similar to utilities, today’s dominant digital platforms derive much of their value from network size," writes Thomas. "The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry."

He says that gives companies with only a few principal players, Facebook's Mark Zuckerberg, for example, and Larry Page and Sergey Brin at Google, for another--both examples Thomas cites--"enormous control over speech."

As to the argument both companies make that they face lots of competition--an argument that does not carry much weight on either side of the aisle on Capitol Hill these days--Thomas isn't buying it: "It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is."

And while the Second Circuit ruled that the then-President had cut off protected speech using Twitter's tools, "if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms."

Thomas said that is a First Amendment issue that the court did not get to wrestle with given that the Second Circuit decision was vacated due to the change in administrations, but he signaled it would likely need to come to grips with it in some other context. He said the extent to which that edge provider power matters in relation to the First Amendment "raise[s] interesting and important questions."

The Federal Trade Commission will challenge a recent federal appeals court decision that the common carrier exception to its jurisdiction is status-based, not activities based.

That is according to FTC Chairwoman Edith Ramirez, who was testifying before a Senate Commerce Committee oversight hearing panel.

Ramirez said that the court's decision has "significant ramifications for our jurisdiction," adding:...I will note that we are going to seeking a re-hearing in that matter."

The Ninth Circuit Court of Appeals, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, ruled that the exemption is not confined only to common carrier "activity" by an entity that has the status of a common carrier, but to noncommon carrier activity by that entity as well.

That suggests that an edge provider, say, could skirt any privacy regs by merging with a common carrier--Yahoo! and Verizon, for example--because the FCC's reclassification of ISPs as common carriers triggered that exemption, while the FCC says it does not have authority over edge providers. 

The FTC had claimed that the exemption was activity-based, so that it only applied to common carrier activities undertaken by common carriers. That left the FTC free, or so it thought, to regulate the mobile broadband of AT&T, which at the time of the action was classified as a non-common carrier service.

The district court, in refusing AT&T's request that the FTC case against it be dismissed, had concluded that the exemption applied “only where the entity has the status of common carrier and is actually engaging in common carrier" activity.

Ramirez pointed out that the FTC supports getting rid of the exemption altogether. She called it "absolutely outdated."

National Cable & Telecommunications Association president and CEO Michael Powell seemed relaxed — at least for a man two weeks out from a major convention revamp — and looked Mad Men-dapper in a sport jacket and open collar. But as soon as he sat down for an interview with Multichannel News Washington bureau chief John Eggerton, he sounded more like a man ready to fight than to recline for a nice chat.

Powell, cable’s top lobbyist, argued that Federal Communications Commission chairman Tom Wheeler has unjustly regulated the industry by treating cable’s broadband Internet product as a common-carrier service under Title II of the Telecommunications Act; and that free enterprise — not the heavy hand of regulation — created the flourishing Internet we have today. He also explained why cable is the gateway to a bright broadband future, rather than the Internet’s gatekeeper.

MCN:Given recent decisions and rhetoric out of the FCC, do you think chairman Tom Wheeler has a vendetta against ISPs? (Editor’s note: The interview was conducted before the FCC signaled its rejection of the Comcast-Time Warner Cable merger, about which Powell declined to speak.)

Michael Powell: I don’t know if I would go that far. Unfortunately, we hear too much language that seems to adopt the kind of negative, superficial language of advocacy groups. We’re not behemoth gatekeepers, villains, which I hear a government agency using to describe an industry that they regulate. I don’t have a high degree of respect for having the industry described in those terms.

I do think that there isn’t a full and often fair enough recognition that an enormous part of the [broadband] miracle they want to celebrate has been brought to them by private industry in the private markets using private capital, and that that is consistent with the public interest as well.

You know, if the government were building the Internet and trying to deliver on the promise of that platform and wanted to build the infrastructure that allows Google and Facebook and Amazon and Etsy today, at the price of their IPOs, they would be awful far from their goal if it weren’t for the actions of private Internet companies who have been delivering on that promise aggressively and forcefully for 15 years. I don’t know how much more you can ask of the private sector than what it has delivered over the last decade completely with private capital and without governmental subsidy or support.

I frankly believe they deserve to be described and treated as a partner in the country’s broadband ambitions and not somehow an obstacle. Just in the time that this administration has been in office, we have seen dramatic increases in speeds and services, deployment and adoption, in new applications and services deployed by the software community.

It’s a curious approach, it seems to me. I don’t know if it’s a vendetta, but it’s certainly not particularly constructive.

MCN:Is Title II so bad if it is defined as the chairman says it is — which is a way to legally support rules you have pretty much said you support — or is it only a disaster if it’s the so-called camel’s nose under the tent?

MP: It is a disaster because the Federal Communications Commission is fundamentally, if not violently, rewriting the national policy of the United States without congressional direction.

Congress in 1996 knew what the Internet was when it passed the 1996 Telecom Act. It full well knew it, because it defined it in the statute and it defined two different regulatory approaches. And they intended as a national policy that dynamic, information-oriented services like the Internet would not be regulated under a regime that was developed and reserved for a world in which you had a very straightforward telephone system with a single national company being managed by a federal judge as the result of an antitrust divestiture and needed to be managed to competition in a way that was due to its unique history.

That history is not the history of the Internet. I don’t think there is a single member of Congress who ever contemplated or intended that Internet access would be telephone service, which is what the commission has fundamentally concluded.

The disaster is that you have shifted the national policy from one in which engineers, entrepreneurs and everyday people govern the Internet from the bottom up without the intervention of a regulator, to a world in which now lawyers and bureaucrats from the top down will spend countless hours and money and time fighting about every way the Internet evolved. You have already seen in the newspapers companies like Cogent openly talking about going in to file complaints.

What happens now is that every business decision, every new service in a competitive market that your competitor doesn’t like, or somebody thinks you are going to get an advantage or you’d rather see it a different way than Cox decided to do it … now there are all kinds of avenues to bring complaints. You can now — no matter what the chairman says — bring a broadband rate complaint to the FCC, so it is entirely possible that anybody who doesn’t like the next price change or price plan that Comcast comes up with for broadband will take that to the Federal Communications Commission, who will have to initiate a proceeding, which will mean we will have to send lawyers in there to file comments.

Every single transit provider or content company could theoretically now bring an interconnection dispute. And you have to ask yourself: Is there really a regulatory problem, or do they just have a business preference and they are just trying to use the government to get it?

Netflix wants a certain outcome that allows it to have zero costs for interconnection. I don’t blame them as a business for wanting that. What I blame is the government lending itself to be a vehicle for guaranteeing that.

MCN:And the process does not work the other way? An ISP can’t file a complaint against Netflix?

MP: The commission said, interestingly enough, that all of them are not subject to these things. Their order also exempts all kinds of classes of players that I don’t understand technologically.

MCN:For example?

MP: [Content-delivery networks] are not transit providers. Why? They do the exact same services. This commission has argued those things don’t count. Why, analytically, I don’t know.

You were talking about a prior chairman earlier. We’re going to blink and it’s is a different chairman. We’re going to blink, and it is a different set of commissioners. The majority of that commission is not going to be here 24 months from now, and yet they will put in place a framework that allows any future leader there to more or less reach any conduct they want.

So, there is just a dishonest description of what this commission has done. It has created a full-out regulatory platform that can be used by anyone who chooses, whether they are faithful to their word that they are not going to regulate rates. That’s only by their grace, which I will accept and respect and be grateful for. But it isn’t because they haven’t created the regime to do it. It is only because they have chosen not to do it.

That is the reality of what we’re dealing with. And I think that’s going to mean that the Internt — which has really blossomed by innovation without permission, as Silicon Valley likes to talk about it — [now is] going to be innovation by adversarial proceeding.

Because anytime anybody doesn’t like an innovation, they are going to come to the government. And I think the tech companies are going to realize they made a big mistake here, because they are engaged in a lot of activities and practices that consumers and activists will also find troubling and now will have a venue, I guarantee you, in which those companies are subject to claims at the FCC as well. And maybe this chairman won’t go after them, but somebody will.

MCN:Let’s pivot to municipal broadband. Are operators who support state laws limiting muni broadband just trying to prevent competition, as the chairman has suggested?

MP: I could tell you unequivocally that our view as an association is that we do not seek state legislation to stop municipal broadband projects. We don’t think that we should. We think that if the democratically elected people in a given state jurisdiction want to vote to use their resources that way, that should be their decision to make. However, I would equally say it is their decision to make if they don’t want to take on those obligations.

The commission seems to be willing to deny the democratic process in one direction and not the other. If the duly elected representatives of state government believe that they don’t want to put citizens on the hook for the debt, the bond, the pricing, having to manage a dynamic, expensive network over an infinite amount of time, and decide they don’t want their money spent that way, I don’t really understand why they should be told they can’t.

I think a lot of these municipal broadband projects are well-intended. I think a whole lot of them collapse. I think a whole lot of them stick taxpayers with debt obligations they wouldn’t otherwise have. And when there is a vibrant, private alternative, I’m not sure that’s the wisest use of public funds.

It is one thing to have a competitor; it’s another to have a competitor that gets to play by dramatically different rules than you are expected to play by. And government municipalities often grant to themselves special privileges not available to private companies. So that is not competition.

MCN:National Association of Broadcasters president and CEO Gordon Smith said in his speech at the NAB Show that stations have to work with policymakers to show their immense value to their communities. What is cable’s immense value to theirs?

MP: I think it is two-fold. One, they are builders of the platform that takes you to the world’s information. That is enormous value. I don’t know if there is any higher value in this world of communications you can deliver to the American consumer than to provide at a relatively low cost, given the value you derive from it, the ability to access the entire record of human knowledge. The ability to work from home. The ability to entertain yourself. The ability to publish and write. The ability to create. That’s what we provide.

If I went to your computer and unplugged the wire in your house and you went to Google, you’d get a big thing saying “no network connection found.” Nothing happens unless that happens first.

MCN:How important is WiFi to the future of your business?

MP: I think WiFi is tremendously important because it allows consumers to export their investment in a fixed broadband network and port it to all the devices that delight them. It is the glue that bridges physical fixed infrastructure to mobile infrastructure. And the way the Internet is evolving, and consumer electronic devices are evolving, that is essential. Because the current generation of tools we all want to carry around with us — phones, iWatches, Android devices, tablets, cameras with WiFi chips, digital recorders — everything wants to get its content out of the Internet and into the Internet, and licensed mobile services are not always enough.

So, I think that if I buy for $50 an Internet connection from Charter, that connection becomes ever more valuable the more I can port that purchase across more devices.

MCN:Why is an “aspirational” 25 Megabits-per-second speed target such a problem?

MP: There is nothing wrong with it, aspirationally. There is everything wrong with it if you try to say that is the definition in the market. And I don’t really have any problem that the chairman of the FCC is saying, “Oh, I think people should have to have 25.” Now, I could debate whether that is the right number. But, it is absolutely not the right number at the competition metric.

MCN:Why?

MP: Because you have to look at the market as consumers find it, not as you wish it to be. Virtually everything that most consumers do on a daily basis can be done at speeds dramatically lower than that. Yes, 25 Mbps is nice, but you can watch Netflix movies at 5, which is the most bandwidth-intensive thing that most consumers do.

Even in Netflix’s quarterly call they said you could do HD 4K at 15 Mbps. That’s still less than the 25 that the chairman is talking about.

So, look, 25 is definitely the sort of cutting edge in terms of functionality. By that I mean that for what consumers are actually doing or want to do out there, I think 25 probably exceeds what is required. But, again, should we aspire to that? The cable industry definitely aspires to that and much more. So, that doesn’t bother us.

MCN:Do you think the chairman is trying to regulate the market more broadly?

MP: I don’t know if I would be prepared to say that. Look, I’ll just take the issues one by one because, on other things, I am very supportive. Like we just talked about with WiFi. He got that right.

But they owe the country honest assessments that are accurate and factually based, and I think that they do that most of the time. But when they are not I don’t think they should be above being called on it. It’s a simple matter. Does 75% of the country really only have one broadband choice? No, not by any layman’s definition. But the game being played is, “As I define it, picking a number I picked arbitrarily for this rhetorical purpose.” At least tell people that’s what you are doing.

MCN:Can you make the case for usage-based pricing?

MP: It’s fair. It should be the only issue. Look, the reality is that when the Internet first started off, there was kind of one thing to do: surfing. People used their Web browsers in the same way to get to sort of the same thing. The Internet has gotten much more sophisticated and increased its dynamic range of uses.

So, you know, I have relatives who sit on their Internet connections and Facebook all day long. I don’t do that. I know people who watch Netflix movies hours a day. My mother doesn’t do that. My mother does email. My mother posts things on low-intensity bandwidth uses. Why should she pay the same thing as a power user? Why should she pay the same as someone who is running a server in their home?

She shouldn’t. Usage-based pricing is nothing but price differentiation, which economics strongly sanctions and, in fact, is a hallmark of efficient markets. [Powell is a former top antitrust advisor at the Justice Department]. It is creating differentiated pricing so that you can get what you need and nothing more.

So, I don’t understand those who want to go apoplectic. You can go to a giant food store and you can buy brand-name cheese that costs $3.25, and you can buy the store brand that costs $1.52, and if you don’t like that, you can go to Costco. We differentiate prices in every facet of the U.S. economy.

And by the way, so does every software company in this debate. Go to Amazon and pay $99 a year and be a Prime member and you get your stuff sent to you within two days for free. Or you can be a different kind of user.

I just think we all have to calm down and stop acting like the communications space is Alice in Wonderland and all the rules don’t work that work everywhere else.

MCN:Let’s circle back to network neutrality. Is there a way for it to end well?

MP: I think it could very easily end well by Congress taking control.

MCN:You think this Congress can do that?

MP: I personally believe they can because I think that the most substantive part of the law [a Republican-backed bill that would prevent blocking, degrading or paid prioritization, but without Title II] has almost universal agreement. The ISP industry is not fighting net-neutrality rules. They will accept them. The Republicans, I think in a remarkable show of concession, are willing to give them to you. I think there is a real opportunity for Democrats and proponents to take a deal while they’ve got it and create net-neutrality rules that are permanent, that are not subject to litigation. End the litigation fight. Save money, save resources. If I were on the other side, I don’t know why you wouldn’t take this deal while you can get it.

MCN:And why should they take the deal?

MP: Because if any part of this order is overturned — it doesn’t have to be the whole thing. Let’s say the wireless part gets knocked off [for the first time the FCC is applying all the rules to wireless broadband]. Or the interconnection part gets knocked out. There will be no more deals to be had on the Hill.

The Republicans on the Hill will not do a deal if they get this thing beaten in court. And the Obama Administration is not going to be here in 24 months. So, there’s a very high likelihood that whatever happens in court gets remanded to a different government. And then what happens? So, I think it could end well for every single person involved for Congress to adopt this as a law.