THE BLOG
10/01/2013 06:39 pm ET | Updated Dec 01, 2013

No Green Eggs and Ham for Google's Competitors

We all know Dr. Seuss' classic tale Green Eggs and Ham. An unnamed pink protagonist keeps rejecting offers of a delectable meal, proclaiming he will not eat it "here or there, I will not eat it anywhere."

This tale of woe seems instructive for explaining how competitors of Google have been complaining to European Commission authorities for nearly three years, calling for wide-ranging investigations into search results on antitrust grounds. Several months ago, this saga seemed to be nearing an end after Europe and Google agreed to substantive remedies to address the Commission's concerns. But Google's pink protagonist rivals said they did not like any remedy -- here or there or anywhere.

In response to these protests, Joaquin Almunia, the commissioner of Europe's antitrust authority, sought a more robust solution to address the concerns raised by Google's competitors. Earlier this week, he announced that such a deal had been reached -- an outcome that achieves Almunia's goals more quickly than could ever be achieved through prolonged litigation.

Almunia's negotiations seem to have produced more concessions that address the Commission's concerns about Google. Almunia will not ban Google from displaying specialized search results because he has correctly recognized that those services are valued by customers. Instead, Google will add links to rival specialized search websites, and clearly label and differentiate its specialized results from its general search results.

Despite this development in a three-year investigation, there are already signs that Google's rivals are still unsatisfied. But after three years of Google's competitors lodging an ever-shifting stream of complaints, it is finally time to try a solution. The EC has been through millions of documents, hundreds of interviews, and listened to Google's rivals.

The EC has faced a difficult environment to reach this agreement; after all, complaints about Google have only come from competitors, not consumers. And the U.S. Federal Trade Commission found that "changes made to Google's search algorithms -- even those that may have had the effect of harming individual competitors -- could be plausibly justified as innovations that improved Google's product and the experience of its users." Under these conditions, Almunia has negotiated a very tough settlement with Google. And while Google's general counsel told the Wall Street Journal that "competition online is thriving" the company "made the difficult decision to agree to [Almunia's] requirements in the interests of reaching a settlement."

Almunia's deal will have Google enter a voluntary commitment that can be enforced by the EC under Article 9 if violated. The EC has had previous experience enforcing such an agreement when Microsoft agreed to a "browser ballot." Additionally, Almunia has suggested in the past that an independent monitor will be appointed to ensure Google abides by the settlement. The EC should move ahead with this settlement, as they will have tools at their disposal if Google reneges and further action is required.

Not surprisingly, Microsoft and Google's other competitors in the FairSearch coalition are urging Almunia to conduct another formal "market test." But make no mistake -- Google's rivals will not like the concessions in a house. They will not like them with a mouse. Like Dr. Seuss' pink protagonist, rather than welcoming an opportunity, the opponents simply dragged their feet and said no to everything.

They will not like them now or ever -- because their goal isn't to be constructive, but to tie Google up in regulatory knots for as long as possible. The fact that these new concessions will not please Google's rivals says nothing about the remedies themselves. Rather, it will speak to these competitors' motives to keep this investigation running for as long as possible. Almunia should resist calls to try this approach once again.

Of course, in Dr. Seuss' tale, the protagonist ultimately decides to try the green eggs and ham. Much to his surprise, he finds them delightful and decides that he will eat them here or there or anywhere. Google's rivals may have a similar experience. On the other hand, their refusal to eat will send a strong signal to the EC that these complaints were never about competition; rather, just another attempt to leverage the regulatory system into an attack on Google.

Ultimately, whether competitors decide to eat their green eggs and ham should not be the metric for determining whether this agreement is a success. The remedies achieved by Almunia represent smart, flexible antitrust enforcement that should be hailed by all the players in this marketplace.