Two Silicon Valley lawmakers wrote to Federal Trade Commission (FTC) Chairman Jon Leibowitz on Monday to express their concern over a potential antitrust lawsuit against Google.
Democratic Reps. Anna Eshoo and Zoe Lofgren slammed the FTC for leaking information to the press about the case and warned the agency not to stretch its antitrust authority.
"The FTC has a responsibility to remain fair and impartial while protecting the confidentiality of internal discussions among the parties involved," they wrote. "The release of sensitive details from an internal draft FTC staff report is irresponsible and potentially compromises an investigation that has yet to be voted on by the full Commission."
The FTC declined to comment.
The FTC 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.
Google's competitors 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.
The company 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.
People familiar with the case say that after a yearlong investigation, the commission staffers have concluded there is reason to believe Google is violating antitrust laws and have recommended that the commission take action.
The commissioners are currently reviewing that recommendation.
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.
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.
The FTC has never won a pure Section 5 suit before.
Eshoo and Lofgren urged the FTC to reconsider its authority under Section 5.
"Such a massive expansion of FTC jurisdiction would be unwarranted, unwise, and likely to have negative implications for our nation's economy," they wrote.
They warned that stretching the FTC's power could lead to "overbroad authority that amplifies uncertainty and stifles growth" — particularly for online companies.
A group of Senate Republicans, led by Sen. Jim DeMint (S.C.), sent a similar letter to the FTC last week expressing concern about "creative theories" to expand the agency's power.