Google/DoubleClick Remedies



Remedies for the Proposed Google/DoubleClick Merger

There are a number of remedies short of blocking the proposed Google/DoubleClick merger outright that address harm to competition that will result should the merger be allowed to close.

1. Divest DART for Publisher (DFP) businesses to an independent and viable purchaser. This would resolve all outstanding competitive concerns by eliminating the horizontal overlap between Google and DoubleClick. The remedies below should be considered as a common set and thus an alternative as a whole in the event that regulators do not require a divestiture of DFP.

2. Open access for competing ad networks. Under this remedy, Google would be required to allow third party ad networks such as DrivePM or ValueClick non-discriminatory access to the dominant DFP user interface and to ensure that competing ad networks and other intermediaries have an equal opportunity to compete with its dominant AdSense network for remnant inventory. Google would not, for example, be allowed to enter into agreements or otherwise manipulate the DoubleClick software to give AdSense preferential “first look” access to remnant inventory of publishers. In effect, this remedy would continue DoubleClick in its traditional role as an “honest broker” of remnant inventory among the various ad networks and other intermediaries competing with AdSense. This remedy is required because, for example, DoubleClick recently started offering a checkbox option for publishers using DFP to choose a default “first look” ad network for remnant inventory. Today, the only checkbox option is for the newly released Dart Exchange MarketPlace, which is nascent. Following the deal, the checkbox option (and other preferential mechanisms) will be switched and limited to the dominant AdSense network, which would allow Google to drive the most valuable remnant inventory managed by DFP to Google and thus foreclosing rival networks. Implementing equal access could involve a drop down menu listing the participating networks and an API that allows competing networks to list themselves on DFP in a non-discriminatory fashion (i.e., in alphabetical or random order or according to the publisher’s individual preference).

3. Open Access to AdSense/AdWords for competing tool vendors. Google should generally be prohibited from discriminating in favor of DoubleClick in terms of the access that Google affords ad-serving tool vendors to its networks. For example, this remedy would include a requirement that AdSense interoperate with third-party buy-side tools, which is standard practice for every network other than Google’s AdSense (i.e., allow “buy-side interoperability.”) Google would also be required to license on reasonable and non-discriminatory terms any intellectual property necessary to enable tools vendors to interoperate with the dominant AdWords/AdSense platform. Today, AdSense does not allow competing advertiser tools to access AdSense data to manage campaigns across multiple networks and/or create unified reports. After the merger, Google will have the ability and a strong incentive to allow such access only to Dart for Advertisers (DFA).

4. Elimination of restrictive API practices and “fair” access to AdWords. Under this remedy, which would be included as a component of the “open access” relief above, third-party tools would have the same access and use of Google’s APIs as its own DoubleClick tools. DoubleClick would be required to interoperate with Google’s ad networks only through the published APIs made available to third-party vendors. Moreover, this remedy would require Google to disclose all APIs and announce any changes to its APIs 120 days in advance. Google also would have to end its restrictive practice of requiring all developers to support all Google campaign management functionality available in the API. Instead, developers would be able to pick and choose which functionality to support. Google would also be required to license on reasonable and non-discriminatory terms any intellectual property necessary to enable tools vendors to interoperate with the dominant AdWords/AdSense platform. Currently, Google affirmatively discourages the integration of AdWords into buy-side tools. Among other things, Google requires third-party tools to segregate keywords on the AdWords network from keywords on other networks and manipulates/changes frequently the API required to access AdWords. Because AdWords is a “must buy” for advertisers, these policies inhibit the ability of vendors to develop tools that reduce the cost and time that advertisers must spend managing advertising campaigns on multiple platforms like Google, Yahoo, and Microsoft. The limited functionality and higher cost incurred by third-party vendors working with AdWords then pushes advertisers to use AdWords’ integrated tools rather than third-party tools. We understand that Google intends to integrate DFA with AdWords (and AdSense), and thus give DFA a distinct and non-duplicable advantage in the market.

5. Prohibit exclusive dealings, the “tying” of AdSense and DFP/DFA, and the tying of any Google products as a condition to obtaining its dominant AdWords package for advertisers. Following the transaction, Google will have the ability to “lock up” publisher inventory for AdSense due to its large number of exclusive contracts with publishers. Under this remedy, customers will have the ability to terminate any exclusive and/or long-term contracts with without penalty. Moreover, Google would be prohibited: 1) from entering into any exclusive contracts; 2) from requiring DFP customers to use AdSense for their remnant inventory; 3) requiring advertisers wishing to use AdWords to also use other Google products or services, or; 4) retaliating against DFP customers who elect to use another network for remnant inventory.

6. Erect firewalls and other safeguards so that the Google commercial organization cannot see or use competitively sensitive flowing through DoubleClick’s ad-serving tools. The proposed acquisition will provide Google with the ability to capture competitively sensitive information flowing through DoubleClick’s formerly “neutral” tools. Google thus will have asymmetric access to information and the ability and incentive to behave strategically to weaken rivals and “optimize” (i.e., increase) its pricing.

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