Washington was reacting Tuesday to the news that Google has been hammered by the European Commission with a record fine for using its dominant position in search to anti-competitively favor its comparison shopping service over others.

Google had not returned a request for comment at press time.

Related: European Commission Fines Google $2.7 Billion

The Information Technology & Innovation Foundation (ITIF), a tech policy think tank, jumped to Google's aid.

"Today’s ruling is bad for consumers and bad for innovation," said ITIF president Robert Atkinson. "The EU has effectively decided that some companies have become too big to innovate. The EU’s actions have created a cloud of uncertainty that will make large tech companies overly cautious about making changes to the user experience and service offerings that would benefit consumers."

The Computer & Communications Industry Association, of which Google is a member, took aim at the EC decision.

“The Commission’s Decision marks a worrying step away from the key objectives of competition law enforcement," said CCIA Europe director Jakob Kucharczyk. "Companies should not be punished for introducing innovative products that consumers and advertisers value. Providing direct answers to users’ search queries is unquestionably a product improvement. All major search engines do it. Courts and competition authorities around the globe have found that there are procompetitive justifications for such product improvements.

“It seems the Commission’s case is mainly focused on competitors who disagree with Google competing on the merits," Kucharczyk continued. "We fail to see the evidence for consumer harm and for quality-related product degradation. If the result of this investigation is to force Google to undo more than 10 years of search engine evolution, EU competition enforcement would clearly not live up to its promise of spurring innovation.

“Leaving aside the commission’s very narrow market definitions, Europe’s e-commerce sector is thriving," he added. "The success of companies like Zalando, Asos or Trivago show consumers have increasing choices to find, compare and buy products online. Investments into e-commerce ventures have steadily increased. All of that is not indicative of a market suppressed by a dominant player.”

Thomas Lenard, senior fellow and president emeritus at the Technology Policy Institute, suggested the EC had gotten off track.

"The focus of the European Commission’s action against Google today appears to be harm to competitors rather than harm to consumers, which should be the focus of antitrust enforcement," Lenard said. "The EC should demonstrate in concrete terms how consumers have been harmed."

Google has maintained that it is simply helping consumers find products they are looking for more quickly and easily.

Scott Cleland, president of Precursor LLC and chair of the ISP-backed NetCompetition, saw it quite differently.

"The EU is right," said Cleland, long a strong critic of the search giant. "Google is a monopoly. It abuses its search monopoly by self dealing and predatorily foreclosing competition. This seven-year EU process has been fair, competent and patient to get it right."

Cleland suggested U.S. regulators should take a page from the EU, and said he expects that they will.

"Sadly the EU is cleaning up the mess created by U.S. non-enforcement of antitrust law caused by obvious political interference and protection orchestrated by Google's outsized political clout," Cleland said. "This decision will trigger a domino effect of additional enforcement against Alphabet-Google in the EU, the U.S. and around the world in search, advertising, Android and Google Play.

"This is the first inning of Google's new official monopoly abuse reality," he added.

“All competition authorities should take questions of platform dominance seriously," said Public Knowledge President Gene Kimmelman. "Although we are not in a position to assess the merits of this particular case, we appreciate the European Commission focusing on these important issues. In these types of cases, antitrust officials must ensure that no company use its market power to foreclose competition, or to leverage its success in one market to gain an unfair advantage in another.

“This case is likely to have much wider implications than the comparison shopping dispute highlighted in the Commission’s statement. We believe effective antitrust enforcement must offer marketplace solutions that benefit consumers and enable competition and innovation to flourish. However this case is ultimately resolved, we believe it is critical that any online platform with excessive market power should not be allowed to discriminate unfairly against competitors while being allowed to develop product and service innovations that benefit consumers."

"Google's market power is one of the most critical challenges for competition policymakers in the world today," said
Barry C. Lynn, director of the Open Markets program at New America. "By requiring that Google give equal treatment to rival services instead of privileging its own, [European Commissioner for Competition Margrethe] Vestager is protecting the free flow of information and commerce upon which all democracies depend. We call upon U.S. enforcers, including the Federal Trade Commission, the Department of Justice, and states attorneys general, to build upon this important precedent, both in respect to Google and to other dominant platform monopolists including Amazon. U.S. enforcers should apply the traditional American approach to network monopoly, which is to cleanly separate ownership of the network from ownership of the products and services sold on that network, as they did in the original Microsoft case of the late 1990s."

Sen. Amy Klobuchar (D-Minn.), the ranking member of the Subcommittee on Antitrust, Competiton Policy and Consumer Rights, said she would be keeping an eye on dominant players.

“Dominant internet platforms increasingly affect not just the products we buy and the information we seek, but innovation and economic opportunities for small businesses," she said following the decision. "I am committed to pursuing these issues to ensure that the internet is an engine to increase economic opportunity and protect consumers in the 21st century economy.”

House Energy and Commerce Committee Republicans have formally asked Federal Communications Commission chairman Ajit Pai to close the docket on the set-top box proceeding because it is no longer under active consideration, and because it “remains an unnecessary regulatory threat to the content creation and distribution industries” and casts a “shadow over investment and innovation.”

This is a wise, pro-competitive, pro-property rights and good government request from Congress to the new Pai FCC.

The FCC should efficiently utilize this decision opportunity to employ the statutory sunset provision in the law to permanently sunset and remove this unnecessary and serious regulatory threat to competition, copyrighted contractual content and its creation, investment, and innovation. It surely is among the top 75% of regulations that the Trump Administration has targeted for removal.

The FCC can justify its sunset of the Section 629 set-top box provision based upon the rich and overwhelming official FCC evidentiary record of:

• The video-related competition documented in the FCC’s Jan. 17 video competition report;

• The still-fresh 2016 FCC set-top proceeding record that provided copious evidence that video-related markets are fully competitive;

• The FCC’s June 2015 ruling “that cable operators are subject to Competing Provider Effective Competition” exempting cable from regulations; and

• The accurate and prescient competitive analysis and approach in the FCC’s 2008 approval of the XM Radio-Sirius Satellite Radio merger that correctly recognized that Internet-delivered content revolutionized how people access and consume content overall and flooded the market with new competition.

The Section 629 provision was written in 1996. when cable still was still largely a monopoly. The evidentiary record today, 21 years later, proves the markets fully competitive and the provision obsolete.

This provision of law included a total sunset provision precisely because Congress anticipated that the 1996 Telecom Act’s overall purpose of deregulation to promote competition would in fact succeed, and enable the technological innovation and competition that eventually would make Section 629 obsolete and sunset-able.

That eventuality is now. Consider this summary of the evidence that these are fully competitive markets.

In 2016 and 2017, the FCC has documented that most Americans have three-plus wireline video distributors and seven-plus choices when wireless is included. That’s far more than any country in the world. 

It spotlights a plethora of new online video distributors and competitive alternatives like Netflix, Amazon Prime, Google-YouTube, Dish Network’s Sling TV, Verizon Wireless’s Go90, AT&T’s DirecTV Now, CBS All Access, Hulu, HBO Now, Showtime and Starz, among others — comprising about 70% of downstream Internet traffic in 2015, per Sandvine.

As for competition for navigation devices, more than 200 million Americans watch their video content on smartphones and tablets, and even more do if one includes laptops and desktop computers.

In short, the markets for video distribution and navigation devices are fully competitive; deregulating will promote competition, as it has before; and that is in the public interest.

Continue reading this blog at at PrecursorBlog.com, where it was originally published.

Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of consultancy Precursor LLC and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.