“The issue here,” says Cleland, “is whether, if the consumer knew of the relationship between the advertisers and the blogger, would it affect the credibility of the blogger’s statements?” If so, the new guidelines would permit the FTC to demand that the blogger disclose the connection, with failure to comply resulting in fines as high as $11,000.

…

The problem, critics contend, is the lack of clarity in the FTC Guides on what will constitute a violation. Beyond direct payments from companies to reviewers in exchange for specific coverage, the guidelines seem to extend to consumer and personal websites where advertising content and editorial content overlap.

One thing that came up in my reporting that I didn’t get a chance to address in the piece is the question of whether blogs are a publishing medium where conflicts of interest are a form of commercial corruption, or just equivalent to individual speech, in which case the government can’t regulate them at all. In this case, the FTC is treating blogs as a publishing medium, at the expense of the many individuals who use the platform simply to carry on personal conversations.

Meanwhile, the FCC seems to be approaching the internet as a form of speech and therefore pushing net neutrality on the grounds that all speech must be treated equal. That approach takes away all the specific protections that commercial content is premised upon (like intellectual property rights), even as that publishing is about to move online.

Meanwhile, Congress, which oversees both agencies, is trying to draw a line in the middle of the blogosphere between those who use blogs as a publishing form–and get special rights but also stricter rules as a result–and those who are just speaking. The Congressional shield bill may be doomed now that it’s lost White House support, but I think in principle, some way of distinguishing commercial from non-commercial content online is going to be necessary.

What frustrates me most, however, is how easy it is for the two agencies to put into law two conflicting definitions of the same space–the net–without anyone raising questions about the inherent contradictions between their approaches. It’s a clear case where some regulatory consolidation is needed.

But as the FCC letter to AT&T; points out, AT&T; has no problem letting users access Google Voice over AT&T;’s network when they do it on a BlackBerry. As the FCC’s decision to send a letter to Google too highlights, there are legit fears of Google from Apple’s side as well: Google has its own phone, where it gets to engage in its own application cherry-picking.

Now Apple, who obviously don’t have anything approaching a monopoly on handsets, can’t be accused of monopolization (using market power to eliminate competitors) as Microsoft was a decade ago. AT&T;, if it turns out they were involved, could be accused of using market power over networks/connectivity that way. What Apple would be on the hook for is colluding with AT&T; in a way that bars competition. Even though it’s clear that banning Google Voice bars competition–ie VOIP competing with AT&T;’s network–it’s unclear to me whether that competition threatens Apple directly. Google, broadly, poses a threat to Apple, but this specific feature might not if it improves the appeal of the iPhone. I don’t know enough about the part of antitrust law that covers collusion (as opposed to the section covering monopolization) to know if the colluding company must be enhancing ITS OWN market power/eliminating ITS OWN competition to be guilty. Commenters, please help out?

On the whole, however, I’m glad the FCC is looking into it–that’s what antitrust regulators are for. What upsets me is that the regulators seem disproportionately inclined to take on cases of companies that upset consumers, where it’s clear how the man-on-the-street is negatively affected by the practice at hand. So because most consumers like Google, hate AT&T; and could care less about Apple, this case makes sense to the Feds.

Meanwhile, the Feds do not bite as often at companies who might be violating anti-trust law in a way that restricts the market at either a more abstract, or simply a less consumer-facing way. Consumers love Google and resent/mistrust the big names in paid content, so the Feds have, until this administration, overlooked the fact that behind the screens Google is establishing a sealed monopoly of online data that prices out whole sectors of content creation, whether that means new web-based news organizations or music, or book or film distribution channels, and impairs the monetization capacity of other sectors that might one day move online.

If the laws bar restrictions on competition (which they do), those laws need to be applied indiscriminately to all companies not only because that’s what rule of law means but also because the unchecked power of companies we like now may prevent the creation of companies we would like tomorrow.