Issa demands briefing from FTC as decision looms in Google case

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight Committee, is concerned that the Federal Trade Commission (FTC) will try to step beyond its legal power to regulate anti-competitive business practices. 

In a letter sent on Monday to FTC Chairman Jon Leibowitz, Issa demanded a staff briefing by Dec. 21 to discuss how the FTC views its power under Section 5 of the FTC Act.

The FTC is weighing whether to file an antitrust lawsuit against Google under Section 5. The commission is concerned that Google is manipulating its search results to ensure that its own services, such as YouTube, Google Maps and Google Shopping, appear above its rivals.

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Google's competitors, such as Microsoft, Kayak and Expedia, argue that the company shouldn't be allowed to use its dominant search engine — which has about a 67 percent market share — to stifle competition for other services. Google says there is nothing unfair about its search rankings. Even if the results did boost Google products, the company says, it wouldn’t be illegal.

Leibowitz has argued that the FTC has the authority to bring a "pure Section 5" suit against Google, which is when the agency sues a company for anti-competitive conduct without having to prove it harms consumers.

Section 5 of the FTC Act gives the agency the authority to penalize "unfair or deceptive" business practices, but the FTC usually relies on narrower authority under the Sherman Act to punish anti-competitive conduct.

In his letter, Issa encouraged the FTC to issue guidelines detailing how it views its authority under Section 5.

"Such guidelines would provide the regulated community the certainty it needs when contemplating business practices," he wrote.

Issa expressed concern that the "Commission appears to be putting its ambitions ahead of a responsible and measured use of its Section 5 authority."

He argued that the FTC should not search for a case to test the limits of its legal power. He wrote that the agency should take action only if there is a clear violation of the law — not to further bureaucratic goals. 

He also criticized the agency for leaking details of the Google investigation to the press, saying disclosures of sensitive information are "counterproductive to the investigative process and should be stopped." 

An FTC spokeswoman acknowledged that the agency received the letter from Issa but declined to comment further.

Correction: A previous version of this article inaccurately stated that the FTC has never won a pure Section 5 case in court