The U.S. Federal Trade Commission is rumored to be deciding whether to bring a “pure Section 5” case against Google as a result of complaints that the company unfairly favors its own offerings over those of its rivals in its search results. But the case will fail miserably at the hands of a reviewing court and the agency will be confined to relatively non-controversial enforcement violations if the FTC fails to impose upon itself a tightly bounded and constrained legal framework that contains clear limiting principles. The only way a court will allow the FTC to pursue a pure Section 5 theory against Google would be if the agency constrains itself with a coherent principle of competitive harm: the consumer choice framework.
This brief piece only summarizes the underlying issues. Readers interested in more information about the expansive use of Section 5 of the FTC Act should consult 'FTC v. Intel: Applying the 'Consumer Choice' Framework to 'Pure' Section 5 Allegations.' Readers interested in more information about the Consumer Choice approach to competition and consumer protection law should consult 'Using the 'Consumer Choice' Approach to Antitrust Law.'
How the FTC Could Beat Google, 10 CPI Antitrust Chronicle 2 (October 2012 (1))