The departure of Deborah Platt Majoras should mark the closing of the special-interest revolving door at the FTC

Deborah Platt Majoras came to the FTC as a corporate lawyer who had represented Chevron Texaco while at the Jones Day law firm. Under her watch, the FTC failed to make any real advances protecting consumer privacy, ensure an open Internet (network neutrality), and promote competition and diversity in the key online marketing sector (Google/DoubleClick, for example).

The FTC should have a chairman and commissioners whose background indicates a strong commitment to consumer protection. They have to be willing to take on the powerful special interests, much of which will be from the big business sector. We need to stop business as usual, where yesterday you were a top corporate lawyer–then you are at the FTC–and soon, back in a well-compensated corporate boardroom. In Deborah Platt Majoras’s case, she is to be a top counsel for the Procter and Gamble company, according to press reports (her former law firm Jones Day has represented P&G, btw). The next administration must appoint officials to the FTC–and the FCC–who are in the orbit of the special interests. The cozy K Street golden revolving door should be sealed shut. If the country is to tackle the problems facing it, it requires consumer champions and business visionaries who understand what is at stake.

I would be remiss if I also didn’t remind readers that my group and the Electronic Privacy Information Center asked Chairman Majoras to recuse herself on the Google/DoubleClick merger, once we discovered that her husband’s law firm Jones Day represented one of the parties. She refused, and groups have asked the FTC to turn over documents related to the case. We intend to pursue this, of course, despite her departure. But the real point is that we need officials at the FTC who have demonstrated through their previous work and intellectual perspectives that they represent the concerns of average Americans—not multi-billion dollar law firms, Fortune 1000 corporations, or well-connected trade associations. In the 21st Century, anti-trust and consumer protection plays a crucial role in the operation of the digital marketplace. That alone is reason enough to make who becomes a FTC commissioner an important public policy issue for those who care about serious reform.

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Joe Sims, the FTC & DoubleClick

A quick point, and we hope others will investigate. Mr. Sims is helping lead the Jones Day team on its DoubleClick merger work, since he is a “senior antitrust Partner” at Jones Day. Mr. Sims, of course, serves along with John Majoras in the firm’s “Antitrust and Competition Law” department. Mr. Sims co-authored an article with Chairman Majoras prior to her work at the FTC. As Mr. Sims wrote in March 2006: “Deborah Majoras, the current Chairman of the FTC, understands all these points about as well as anyone could. She has spent about 10 years in private practice, a lot of that time doing merger work from the defense side, and about five years in senior positions at the Antitrust Division and the FTC, doing merger work (among other things) from the agency side. When she was in private practice, she coauthored (along with the author of this Commentary) one of the most detailed critiques of the HSR second request process, which estimated the potential costs of what the authors viewed as overreaching by the agencies in the hundreds of millions or potentially billions of dollars…

Understanding whether the FTC staff learned of the Jones Day role in the merger is important. The Chairman says she didn’t learn about it until Tuesday. We don’t really know what may have been communicated to the EC by Jones Day on the DoubleClick matter, and whether that was reported back to the FTC (via, for example its Office of International Affairs). But the public requires answers.

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The Jones Day, Google/DoubleClick & FTC conflict of interest: a higher standard is required by the agency

Our lawyers are advising my organization on this matter, but I want to remind readers of one point. John Majoras of Jones Day is listed on its web site as the “Partner-in-Charge of business development in the Washington, D.C. Office and is a member of the Firmwide Business Development Committee.” [better read it now before Jones Day removes it!]

In that position, his role raises conflicts of interest with cases involving the FTC, in my opinion. With an issue involving the future of the Internet and the fate of digital media in a democracy, the highest standards are required. Chairman Majoras should have recused herself in this case. Jones Day should not have taken on DoubleClick as a client. Jones Day’s removal of the web pages discussing its role as advising DoubleClick in both the U.S. and EU raises serious questions about the firm’s activities in this merger case. There are so many key questions that must be publicly resolved. When did Jones Day begin representing DoubleClick? When did it announce, via its website, internal communications system, and through its representation with clients, regulators, and other outside parties, that it was representing DoubleClick? Did the FTC staff learn of the relationship between their boss’s husband’s law firm and the merger? (Please don’t tell me that such a relationship, even if spread informally, doesn’t have an impact on the proceeding.)

The public requires the highest standards of conduct from its public officials and leading law firms. This incident illustrates that more must be done to make such institutions accountable. Yesterday’s FOIA request by EPIC asking that the FTC provide it with all records related to its communications with Jones Day in this merger case (and related privacy issues) is a step in the direction of obtaining some sunshine.

Over the last six months, we have been focused on the business and privacy issues related to the Google and DoubleClick merger. We knew a huge lobbying operation was in effect, with Google having added significant political capacity in D.C., and various competitors (Microsoft, the phone companies, Yahoo!) jockeying for position. Our job at CDD was to provide some honest analysis about the realities of the online advertising business–its market structure, goals, and privacy threats. We didn’t have the time–nor the resources–to dig into the political aspects of the issue. Sadly, there was little serious journalism on the deal as well. But last Monday we decided to examine what role Jones Day was playing in the Google merger and learned–via its website–that it represented DoubleClick.

This case illustrates something we all know. That the big money and special interest nature of Washington politics is at odds with the concerns and needs of the average American. As I said, a higher standard is required–for public service, disclosure and intellectual rigor (something we believe the FTC has failed to do in this case and related privacy matters). It’s a story that not going away. That’s why we are writing about it–and keeping a watch as well!

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NYU Legal Ethics Expert Says FTC Chair Majoras should recuse in Google/Doubleclick review

Before we run this legal comment, we want to make something clear. This is about ensuring transparency and accountability in the process. It’s not about political ideology or trying to affect the outcome of a proceeding. There are standards that must be adhered to when one is serving the public (oh, and btw, the idea of disappearing web pages from the Jones Day website reflects, I suggest, their own ethical confusion as well). Here’s an important perspective from today’s Online Media Daily:

“Legal ethics expert Stephen Gillers, a professor at New York University Law School, maintains that there’s no question that Deborah Platt Majoras should recuse herself, regardless of whether Jones Day appeared before the FTC in the matter. John Majoras “stands to gain from the success of Jones Day, especially in a high-profile case like this and, therefore, her decision can affect his interest and therefore her interest,” Gillers said.”

“DoubleClick Law Firm Accused Of Concealing Involvement In Merger.” Wendy Davis. December 14, 2007

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Google & the Public Interest Policy Pod People

They’re coming. The “Google Policy Fellows” to help staff an array of public interest groups and policy think-tanks. “As lawmakers around the world become more engaged on Internet policy,” says Google, “a robust and intelligent public debate around these issues becomes increasingly important…The Google Policy Fellowship program offers undergraduate, graduate, and law students interested in Internet and technology policy the opportunity to spend the summer contributing to the public dialogue on these issues…Fellows will… work at public interest organizations at the forefront of debates on broadband and access policy, content regulation, copyright and trademark reform, consumer privacy, open government, and more. Participating organizations… include: American Library Association, Cato Institute, Center for Democracy and Technology, Competitive Enterprise Institute, Electronic Frontier Foundation, Internet Education Foundation, Media Access Project, New America Foundation, and Public Knowledge.”

It’s wrong for public interest and consumer organizations to take Google’s money and especially provide a “Fellowship” in its name. We need to build more consumer advocacy capacity to address Google’s growing power, especially its threat to privacy. No matter what these groups say (and some already take money from Google; others receive broad media industry support), there are digital strings attached, as subtle as they may be. The Fellowship program is just another lobbying and PR effort coming from a company that has a broad policy agenda. Many of the groups above should be training people to represent the public versus companies such as Google, and other big online advertisers and new media conglomerates. Giving Google a say on the training of policy advocates, let alone a funding role, undermines the public interest movement.

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FCC Chairmen and the Revolving Industry Door: A Higher Standard is Required

The list of former FCC chairs working in the media and communications business–either as lobbyists, consultants, or investors–is in illustration of why the commission is badly in need of reform. One day a chair is overseeing a media company–or a policy directly affecting it. The next day–after they leave office–they are working for the company or the industry. We really require FCC commissioners who are independent of the media and communications industry–before and after they leave the commission.

Michael Powell took a job as senior advisor at the buy-out firm Providence Equity Partners. Since he joined the firm, they have acquired–in whole or part–TV stations, a spanish language network, other media properties. Take a look at this report from the Los Angeles Times about the Orange County Register and note the role of Powell’s Providence. The deal was made prior to Powell joining the firm, but he’s there now, while these layoffs are happening [my italics]:

“Newsroom staffers described a morose — and tense — newsroom. Dragging out the layoffs for a week, they said, seemed particularly cruel and stressful.

“The way they’re doing this is just horrible,” one longtime staffer said. “It’s like, ‘Thanks for everything. Get out. Here’s some boxes, start packing.’ ”
…In 2004, privately held Freedom Communications Inc., parent of the Register, worked out a $1.3-billion buyout deal that saw more than half of the members of the founding Hoiles clan cash out their holdings and private equity firms Blackstone Group and Providence Equity Partners purchase nearly 40% of the shares. At the time, insiders said the investors borrowed a little less than $1 billion and provided about $400 million more in private capital to finance the deal.”

Then we have former Clinton appointed chair Reed Hundt engaged in his favorite twin occupation of media industry guru/investor. Hundt had been helping lead the effort by his Frontline Wireless company to have the commission approve policies compatible to his interests. Even former Reagan-era FCC chair Mark Fowler is working with Hundt’s Frontline.

FCC reform should be at the top of the public interest policy agenda, esp. with the future of democratic communications at stake.
source for Powell/Provide/OC Register story: “O.C. Register lays off workers: The newspaper will also trim news space to reduce costs as its revenue decline.” Kimi Yoshino. Los Angeles Times. Aug. 7, 2007.

Yesterday, the FTC sent out a release announcing its November town meeting on online advertising and privacy. The hearing is in response to the formal complaint my group Center for Digital Democracy and the USPIRG filed last November.

It’s clear that the FTC is fearful of really tackling the privacy and consumer-manipulation problems intrinsic to the online ad field. Behavioral targeting, which we also address in our complaint, is just the tip of the proverbial data collection and target marketing iceberg. Policymakers at the FTC, the Congress, and state A-G’s must do a better job in addressing this problem. Chapter seven of my book covers the topic, along with recommendations. As we noted in our statement yesterday, CDD has given the staff at the FTC a ton of material since November, further making the case for immediate federal safeguards. There is so much at stake regarding the future of our (global) democratic culture and its relationship to online marketing. We hope others will join with us and raise the larger societal issues, in addition to the specific online ad marketplace concerns.

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excerpt from a Q and A on online ad exchanges:

“8. How can advertisers target their ads?
The DoubleClick Advertising Exchange service has one of the most
sophisticated and broad set of targeting options available. The exchange
supports standard online targeting elements including time of day, day of
week, user location, et cetera. In addition, buyers can target using
DoubleClick’s proprietary solutions including a three-tier content
categorization, site genre and site maturity. Buyers can target
participating sites by name or, alternately by using IDs, target sites
that are participating anonymously. The exchange also allows buyers to
leverage their own data by targeting based on their own user information.

9. What differentiates your ad exchange from other ad exchanges?

* Seamless integration: DoubleClick Advertising Exchange is tightly
integrated with DoubleClick’s existing DART ad management platform,
enabling yield maximization across sales channels for sellers, as well
as shared creatives, advertisers, Spotlight Tags and audience
targeting for buyers…

12. Can your ad exchange service be integrated with other ad management
platforms?
DoubleClick Advertising Exchange is tightly integrated with DoubleClick’s
existing solutions. Integration with DoubleClick’s ad management platforms
— including DART® for Publishers and DART® Enterprise — enables it to
deliver unique benefits such as dynamic allocation, which helps publishers
automatically determine how to generate the highest return for every
impression. In addition, DoubleClick Advertising Exchange is integrated
with DART® for Advertisers, allowing for shared campaign management
elements including creative, advertisers, user-lists and spotlight
tracking tags.”

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Google Buys More Lobbyists and Influence

excerpt from Washington Post: “…Google went on a hiring spree and now has 12 lobbyists and lobbying-related professionals on staff here — more than double the size of the standard corporate lobbying office — and is continuing to add people. Its in-house talent includes such veteran government insiders as communications director Robert Boorstin, a speechwriter and foreign policy adviser in the Clinton White House, and Jamie Brown, a White House lobbyist under President Bush.

Google has also hired some heavyweight outside help to lobby, including the Podesta Group, led by Democrat Anthony T. Podesta, and the law firm King & Spalding, led by former Republican senators Daniel R. Coats (Ind.) and Connie Mack (Fla.). To help steer through regulatory approvals in its proposed acquisition of DoubleClick, an online advertising company, Google recently retained the law firm Brownstein Hyatt Farber Schreck.”

from: “Learning from Microsoft’s Error, Microsoft Builds a Lobbying Engine. Jeffrey H. Birnbaum. June 20, 2007

PS: And that’s before Johanna Shelton, former aide to Rep. John Dingell and FCC Commissioner Adelstein, starts working for Google on Monday!

Google Buys DC Access: Adds Lobbyists with Connections

excerpt: “Google expanded its Washington staff to 13, including five lobbyists, and then scored a victory this week with the hiring of its sixth: Johanna Shelton, senior counsel for telecommunications and the Internet to Representative John Dingell. Dingell, a Michigan Democrat, is chairman of the House Energy and Commerce Committee, which oversees media, telephone and Internet issues….The company last week retained outside lobbyist Makan Delrahim, former deputy assistant attorney general in the Justice Department’s antitrust division, to help win approval. Former Republican Senators Dan Coats and Connie Mack, both partners in the Washington law firm King & Spaulding, began lobbying for Google last year, as did the mostly Democratic Podesta Group. Google staffers include Republican lobbyist Jamie Brown, a former Bush aide whose job included lobbying senators on the confirmations of Supreme Court Justices John G. Roberts and Samuel Alito; and Democrat Robert Boorstin, a former speechwriter for Clinton on national security issues.”

via Bloomberg news

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