Overview
Google and the US Department of Justice remain divided over several parts of the final remedies in the government’s ad tech antitrust case, even though both sides broadly agree on the main changes Google will have to make.
A 41-page filing sets out competing versions of the proposed final order, with the DOJ’s preferred language and Google’s alternatives appearing side by side in brackets. The document follows Judge Leonie Brinkema’s remedies decision, which was unsealed on September 16.
The parties had been expected to negotiate a single proposed order for Brinkema to sign. They failed to reach agreement on several provisions, leaving the judge to resolve the remaining disputes before issuing an enforceable order.
Once Brinkema signs the final order, a 60-day period will begin before the remedies take effect. Google is also expected to appeal the decision.
The remaining disagreements cover implementation deadlines, international application, publisher access to data, the selection and authority of a compliance monitor and the standard for addressing noncompliance.
Google and DOJ agree on main ad tech changes
There is little disagreement over the central remedies. Google must create an integration between AdX and Prebid so publishers using Prebid’s header bidding wrapper are able to request bids from AdX. AdX will also have to accept bid requests from non-Google publisher ad servers and respond under the same terms offered to Google’s DFP publisher ad server.
Google will be prohibited from restoring first look or last look practices inside DFP or AdX for programmatic open-web display auctions. Those mechanisms previously gave Google advantages in determining when its own exchange received opportunities to bid.
Unified pricing rules will also be prohibited. Those rules prevent publishers from setting different price floors for different buyers.
Google Ads will no longer be allowed to bid directly into DFP. Its bids will instead have to pass through AdX or Prebid, placing Google Ads on the same route available to other buyers.
DFP and AdX will also have to be sold under separate contracts. Publishers will be able to use one product without being required to purchase or use the other.
Publishers will receive additional rights over their data. Within three months after the order takes effect, Google must provide a way for publishers to export DFP configuration information and historical bid data. Those records would give publishers more information when assessing a move to another publisher ad server.
Implementation timetable remains disputed
Google and the DOJ disagree over how quickly several technical remedies should be introduced.
The DOJ wants the AdX and Prebid connection operating within six months after the order takes effect. Google is seeking 12 months. The same disagreement applies to integrations between AdX and competing publisher ad servers.
Their positions are further apart on international implementation. Google wants as much as another 24 months to introduce certain remedies outside the US. The DOJ wants the requirements applied globally from the beginning.
Under the DOJ proposal, publishers would be able to request their DFP data while considering or evaluating a competing ad server. Google’s language would make the data available only after a publisher had already decided to switch.
The difference affects when publishers receive information needed to compare Google’s ad server with competing products.
Compliance monitor becomes another point of dispute
Both sides support a six-year monitoring period and agree the appointed monitor should receive access to Google’s systems and source code. They differ over the appointment process and the monitor’s authority.
- The DOJ wants the government to nominate a group of candidates, with Google selecting the monitor from that list. Google proposes the reverse arrangement, under which it would nominate candidates for the government to choose from.
- The DOJ also wants Google required to “cooperate fully” with the monitor and provide “full and complete access” to relevant documents, source code and current or former personnel within 14 days.
Google proposes narrower language. Its version says the company would take “no action to interfere” with the monitor and provide “reasonable assistance.”
The two sides also disagree over dispute deadlines. The DOJ proposes giving Google 15 days to challenge an issue raised by the monitor, while Google wants 30 days.
DOJ seeks standard for noncompliance
Another unresolved provision concerns conduct the DOJ describes as malfeasance. The government wants the final order to establish a standard for determining when Google’s failure to comply moves beyond a technical disagreement and becomes conduct subject to contempt proceedings.
The distinction matters because contempt is one of the mechanisms available to enforce a court order when a company fails to follow its terms.
Google does not propose an alternative definition. In the company’s version of the filing, the relevant section states that Google omits the subsection entirely.
Similar differences appear throughout the proposed order, with each side narrowing, expanding or removing language governing how the remedies would operate in practice.
Brinkema will now have to settle those disputes before signing the final order. Although the structural parts of the remedy are largely agreed, the remaining language will determine how quickly Google has to comply, how much access publishers receive and how closely the company will be supervised during the six-year monitoring period.
