The FTC announced its settlement with Google today, and while its commissioners may have agreed unanimously to close the investigation into Mountain View's alleged "search bias," they didn't provide such a united front when it came to some of the other measures announced. In a lengthy written statement, J. Thomas Rosch writes that he has issues with some of the decisions made — both because they give the impression powerful companies receive special treatment, and because they address issues that he doesn't feel were violations in the first place.
According to Rosch, Google didn't need to agree to stop scraping websites for repurposing on its own services as was alleged. "Google does not have monopoly or near-monopoly power in any conceivable relevant market related to the challenged practice," he writes. "In a local information or shopping comparison market, for example, Google's share at the time of the scraping was in the single digits." As such, it wouldn't have fallen under the purview of antitrust law, and needn't be addressed by the FTC.
"The alleged 'victims'... continued to thrive."
He also called into question FTC Chairman Jon Leibowitz characterization of the practices as being harmful to innovation, writing that "Vertical search engines — including the alleged 'victims' of Google's scraping — have continued to thrive and expand" since the accused behavior took place. He had similar problems with Google's agreement to change some of its AdWords policies.
The settlement could send the wrong message
However, his strongest words are for the settlement itself, with Rosch saying that the arrangement didn't come in the form of a binding consent order, and as such doesn't have any teeth. "Google can resume engaging in its alleged scraping or API restrictions at any time, without penalty," he writes, noting that the accommodation also paves the way for future investigations to go down the same path. According to Rosch, if other companies are denied such non-aggressive settlements it "would imply that Google has received preferential treatment in this investigation."
It's important to note that Rosch doesn't disagree with the entirety of the FTC's settlement with Google, but it's quite clear that Google's competitors aren't the only ones that think the investigation should have been resolved in a different fashion.