July 18, 2018

Europe’s antitrust enforcer hit Google with another massive fine on Wednesday, this time a €4.34 billion ($5.04 billion) levy over the licensing practices for its Android mobile operating system, nearly double one issued last year for favoring its own comparison shopping site in search results.

The European Commission found that the search giant uses its position in the market for mobile operating systems to further cement its dominance over internet search in Europe. (AP)

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The Context

The U.S. also brought a case against Microsoft over its tying of Internet Explorer in the late 1990s, and won a successful judgment before eventually deciding to settle after a mixed appellate ruling. Benjamin D. Brown, a partner with Cohen Milstein Sellers & Toll PLLC and a former DOJ antitrust division trial attorney, said the reaction to that case was mixed.

“Even within the division, among career staff, the resolution of the Microsoft case was somewhat controversial,” he said.

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For its part, the Federal Trade Commission had its own long-running investigation into Google, but shuttered the probe without taking action in 2013. Newly minted FTC Chair Joseph Simons, however, said during his confirmation hearing that he sees advancing technology as an area of interest for the agency. One of his first initiatives as chairman is also a series of hearings intended to help shape a policy approach to issues including privacy, big data and the potential for enforcement against large technology platforms.

Simons was asked directly about the EU’s Google Android decision while speaking in front of a Senate subcommittee on Wednesday after the fine was announced. He responded that the agency “will read the order very closely,” but also explained that the FTC's burden for enforcing antitrust rules was higher than the EU’s.

Brown said that abuse of dominance, or monopolization cases, are an area where it's pretty well-recognized that the standards between the two regimes are different and that it's unlikely U.S. enforcers would pursue a case like the Android action.

“Even though a lot of antitrust enforcers speak the same language and think the same way, when it comes to just how much of a hand the government should have on markets, the EU — especially when it comes to dominant firms — feels that it’s important to have distributed market share and market power,” he said. “The United States enforcers just don't generally see the world that way.”

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