Google Hoisted by Its Own Petard

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As Alphabet’s Google delights in the decision by the three-judge panel of the U.S. Court of Appeals for the District of Columbia upholding the FCC’s ridiculous net neutrality rules involving the Title II reclassification, the search provider’s attorneys should take a close look at the potential long-term ramifications. In particular, the holding shockingly places no First Amendment protection at all on any provider of services that the commission arbitrarily designates as being regulated by common carriage. Is not YouTube, along with Facebook, Twitter, etc., providing “neutral…conduits…of others’ speech” rather than “engag[ing] in speech in their own right[?]”

Another concern for Google should be that the Court held: “If a broadband provider nonetheless were to choose to exercise editorial discretion—for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience — it might then qualify as a First Amendment speaker.” Why would not some ISPs consider moving in this direction to avoid the FCC’s draconian rules as they would be precluded under this scenario from the Open Internet Order anyway?

Of course, Google has made investments outside of its core business in order to increase Internet traffic, facilitating greater amounts of advertising revenue for the company. The last thing it would want would be a diminution of “a standardized service that can reach ‘substantially all’ endpoints.”

For it is only a matter of time before the US government moves beyond its common practice of picking winners, such as Neflix, and losers, including AT&T. Agencies that are largely unaccountable to the American people in the executive branch ultimately look to regulate all of the players when it comes to businesses.

Google’s former allies in the academic world and the so-called consumer advocates, who have both helped to turn “free market capitalism” into a dirty term, will be more than glad to turn on a dime, and support going after the Googles as well. Included on the agenda will be the massive, proposed framework by the FCC for broadband privacy.

Switching over to optics, we find another petard for Google. A year ago, there was an announcement of a 100-million IPO filed by InnoLight Technology, which formerly received investment money from Google Capital. In turning to the “Investors” page on the optical supplier’s website, all one sees are the equity firms.

It has become self-evident that the offering never went anywhere, and what appeared to be a rather graceful way for Google to deal with its vertical integration efforts, is probably no longer the case. Several companies in the optical component space can hardly conceal their sense of great satisfaction.

[written by Mark Lutkowitz]

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