Search, Essential Facilities, and the Antitrust Duty to Deal

I. INTRODUCTION On January 3, 2013, the Federal Trade Commission (FTC) voted unanimously to close its nearly two-year antitrust investigation into Google's search practices without filing a complaint. 1 Though the FTC did secure a consent decree involving patent licensing in Google's mobile business, 2 it concluded that the firm's practice of often favoring its own content in the presentation of search results, sometimes referred to as search "bias," 3 did not violate U.S. antitrust law. 4 It determined that, though the practice may have an incidental negative impact on some competitors, it was a quality improvement that likely benefited consumers. 5 Similarly, it concluded that Google did not selectively change its search algorithm to exclude competitors and impede competition, and that any disadvantage to competing websites was the collateral result of changes that likely improved the quality of Google's search results. 6 In terminating the investigation after concluding that Google had not made changes to its search results in order to "exclude actual or potential competitors and inhibit the competitive process," 7 the FTC seemed to have implicitly rejected the notion that a major search engine may not favor its proprietary content in search results unless that content is "objectively" superior to competing content. While some Google critics, particularly its competitors, disapproved of the outcome, 8 the FTC's decision is well-grounded. If Google did not act to impede competition, then it is difficult to identify an antitrust theory of liability for its search practices, ...