The FTC: A Fount of Uncertainty

The signals from the anonymous sources have changed. Until recently, the predictions were that the Federal Trade Commission would settle its case against Google this month with only relatively mild restrictions on Google’s ability to rain benefits on its users and make a profit for itself—and those restrictions wouldn’t be backed by a court order.

Now it seems the FTC is postponing a deal till January, and it may demand that Google submit to the entry of a court order restricting it.

That means more uncertainty for Google.

But Google isn’t the only enterprise facing uncertainty because of the FTC. Every business—at least, every business that’s a major producer in its field—is. Geoffrey Manne and Berin Szoka warn that the agency is using a scarcely defined power to go after “unfair” business practices as a bludgeon to coerce companies into agreeing to restrictive antitrust “consent decrees” rather than fighting the FTC in court:

Sure, [a defendant] might win in court eventually, but if the FTC is talking to you about a standalone Section 5 case while pressuring you to settle a case in a consent decree… well, “you’ve got to ask yourself one question: ‘Do I feel lucky?’ Well, do ya, punk?”

The less you can be certain what your legal rights are, the more you have to hope for luck.

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