Google case could turn on single vote

Whether the Federal Trade Commission brings an historic antitrust lawsuit against Google could hinge on the vote of a single commissioner: Democrat Edith Ramirez.

A majority of the five commissioners must vote to approve any legal action. Democratic Chairman Jon Leibowitz and Democratic Commissioner Julie Brill appear favorable toward aggressive action against Google over how it ranks its search results, according to two people who have discussed the case with the commissioners.

Those sources expect Republican Maureen Ohlhausen to oppose action on the most serious antitrust charges. Republican Commissioner J. Thomas Rosch is also expected to oppose the strongest charges, according to the observers, though he is often a wild card.

Rosch will leave the commission after the Senate confirms his replacement, Joshua Wright, but Wright has promised to recuse himself from the Google case because he received funding from the company for his academic work.

That makes Ramirez the swing vote in the FTC's most significant case in years.

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Sources who have met with the commissioners said they believe Ramirez is leaning against action on the most serious charges. But one source said he believes she is still "struggling" with the case.

Ramirez joined the commission in 2010 after working on antitrust and intellectual property issues in private practice. She worked on President Obama's 2008 campaign as his director of Latino outreach and attended Harvard Law School with Obama.

"She's an extremely careful person," said Bill Kovacic, a former FTC chairman who now teaches at The George Washington University Law School. "She works very hard to get it right."

The most significant issue in the FTC's investigation of Google is whether the company is manipulating its search results to ensure that its own services, such as YouTube, Google Maps and Google Shopping, appear above its rivals.

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.

The FTC won a fight with the Justice Department's Antitrust Division over which agency would take on the Google case, and after a yearlong investigation, there is pressure to take some kind of action.

"Institutionally, there is a lot of pressure on Leibowitz to come up with something," Kovacic said. "The commission painted itself into a bit of a corner."

The FTC could still extract concessions from Google over its syndicated search agreements with other websites, its use of other companies' content in search results and its advertising restrictions. The commission is also investigating a separate case involving Google's legal battles over its industry-standard patents.

But the sources said they believe Google has threatened to fight the FTC in court over any charges involving search bias.

"I think the FTC is getting nervous because they're afraid of litigation," one source said.

Chairman 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.

The FTC has never won a pure Section 5 suit in court before, and lawmakers of both parties have written to the commission in recent weeks, warning it not to try to stretch its authority.

Ramirez is "not a firm believer" in the FTC's ability to bring a pure Section 5 suit, according to one source.

So instead, she is focused on examining whether there is any evidence that Google's search algorithm harms consumers.

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