# United States v. Google/Conclusions of Law/Section 3B

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    B. Google Has Monopoly Power in the General Search Text Ads Market.
       1. General Search Text Ads Is a Relevant Product Market.
The court moves next to general search text advertising. As before, the court applies the Brown Shoe factors to determine the relevant product market and then addresses Google’s counterarguments. Each of the relevant Brown Shoe criteria warrants recognizing general search text advertising as a relevant product market.
Peculiar Characteristics and Uses. General search text advertisements, or “text ads,” are displayed on a SERP in response to a user’s query. FOF ¶¶ 175–176. Like search ads, they are distinguishable from social media and display ads for the reasons already stated, supra Section III.A.1. Text ads have various unique features that also differentiate them from other types of search ads, most notably shopping ads, or PLAs.
First, text ads have the appearance of organic search results and provide web links to the advertiser’s site. FOF ¶ 176. They can include an image but are largely text-based. Id. PLAs, on ​the other hand, are visually driven and appear at the top of the SERP in what is referred to as a “carousel.” They are not integrated into the SERP results. FOF ¶¶ 177–178.
Second, advertisers write the “copy” for text ads but do not do so for PLAs. FOF ¶ 182. Advertisers value this control because it allows them to highlight discounts, seasonal offerings, new products, or other promotions. Id. PLAs offer little content other than a product image, its pricing, and its source. FOF ¶¶ 178, 183. For instance, Home Depot may purchase a PLA to sell a trash can that is currently on sale in response to the query “trash can.” But a PLA cannot promote its storewide Labor Day sale, during which all trash cans are 50% off. That information can be conveyed only with a text ad. FOF ¶¶ 179, 182.
Third, and perhaps most importantly, text ads are available to a far broader range of advertisers than PLAs. PLAs can feature only tangible goods because they can be depicted visually, whereas text ads may be used to sell all manner of goods and services. FOF ¶ 179. This distinction is crucial. Over 92% of Google’s advertisers only purchase text ads, while a mere 5.5% of Google’s advertisers purchase both. FOF ¶ 181 (only 2% of Google’s advertisers purchase PLAs but not text ads); see also id. (“In terms of revenue, 52.8% of ad dollars spent on Google came from advertisers who purchase only text ads.”). Notably, some of Google’s largest advertisers are travel sites, FOF ¶ 180, who have no use for PLAs. The breadth of advertiser access and usage is a key distinction between text ads and PLAs.
Industry or Public Recognition. Both Google and its advertisers recognize text ads as a distinct product submarket. Google has repeatedly acknowledged that text ads and shopping ads are different products. FOF ¶ 187. It even has different teams for text ads and PLAs. Id.
​Advertisers also recognize each ad type as a distinct product. Non-retail advertisers emphasized that they simply cannot use PLAs, and thus they view text advertising as its own channel. FOF ¶¶ 179–180.
Retail advertisers who purchase PLAs view them as a complementary product. Text ads can be used in conjunction with PLAs to “own the SERP,” that is, take up as much real estate on the search results page as possible. FOF ¶¶ 189–190. For instance, Amazon’s Director of Software Development, Mike James, testified that, from the advertiser’s perspective, “there are . . . distinct advantages in one ad format over another,” and “there are edges where those ad units have their own specific incremental benefits.” James Dep. Tr. at 234:23-24, 235:3-4. Amazon uses a particular bidding strategy for branded keywords on text ads, which cannot be achieved through PLAs alone. See id. at 95:3-8. To be sure, text ads and PLAs arguably serve a similar function from a user’s perspective, id. at 142:4-5, 234:9-19 (stating that “there is an intersection of the purposes that they serve,” which is that they “can fulfill the same customer’s need”), but marketers view them as distinct products.
Google counters that “what matters for market definition is that many advertisers can and do buy other search ads as substitutes.” GRFOF ¶ 19f. At trial, Google employees highlighted that certain advertisers shift spend between text ads and PLAs. FOF ¶ 234. This, Google contends, is evidence that these ad types are substitutes. But, as discussed, only retail advertisers can shift spend between text ads and PLAs—only a small minority of all Google advertisers (7.5%) purchase both ad types. And for reasons already discussed, the reallocation of some spending between text ads and PLAs does not on its own reflect significant substitution: Advertisers may reallocate dollars among ad channels for a variety of campaign- or product-specific reasons. ​See supra Section III.A.1. Thus, the mere fact that advertisers move some spending between text ads and PLAs does not, without more, make them substitutes.
Unique Production Facilities. Text ads are generated and sold through different means than PLAs. The appearance and content of text ads is controlled by the advertiser, who has substantial design input. FOF ¶¶ 182, 184. In contrast, Google designs PLAs; the advertiser merely supplies the inventory. FOF ¶ 183. While both text ads and PLAs are sold through auctions, the auctions are separate. FOF ¶ 185. And Google has rejected proposals to integrate the auctions because “user intent and advertiser value is different across the units, and as a result advertisers are not bidding on the same thing on Shopping and Text ads.” UPX1013 at .003; FOF ¶ 185. Finally, while PLAs appear on SVPs and other platforms, text ads are unique to GSE SERPs. Cf. FOF ¶ 193 (SVP search ads are almost exclusively PLAs).
Distinct Customers. As already discussed, text ads are open to nearly all advertisers, whereas PLAs can feature only tangible goods.
Google counters that “[t]he observation that some advertisers purchase only text ads (and not product listing ads), or do not advertise with certain major SVPs, does not show that general search text advertising is a relevant market because not all potential substitutes need to be equally compelling to all customers.” GCL ¶ 34; see also GRCL ¶ 9. But that argument largely misses the point. Over 92.0% of Google’s advertisers purchase only text ads. For that large cohort PLAs apparently will not do. A product that serves less than 10% of advertisers cannot be a substitute for one that serves all of them.
Distinct Prices. Text ads and PLAs are both priced on a cost-per-click, or CPC, basis. The prices of text ads, however, are higher than those of PLAs. FOF ¶ 186. Dr. Whinston’s analysis ​revealed that while PLA prices remained stagnant or decreased from 2016 to 2020, text ads prices steadily climbed over that same period. Id.
Sensitivity to Price Changes. Over the years, Google has tested whether it can profitably raise its text ads prices by 5% or more without losing substantial advertisers, and the results have been largely consistent—it can. FOF ¶¶ 238–267; FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327, 338 n.1 (3d Cir. 2016) (“The SSNIP is typically about 5%.”); Sysco, 113 F. Supp. 3d at 33– 34 (same). The court will delve further into the details of Google’s numerous ad experiments and feature launches, infra Section VI.B, but at present it is sufficient to say that the evidence firmly establishes modest advertiser sensitivity to small but significant text ads price increases. This reality is particularly acute for sellers of services or non-tangible goods, who cannot buy PLAs.
Accordingly, applying the Brown Shoe factors, Plaintiffs have proven that general search text ads is a relevant product market.
       2. Google Has Monopoly Power in the General Search Text Ads Market.
Plaintiffs offer both direct and indirect evidence of Google’s monopoly power in the market for general search text advertising. The court starts with the indirect evidence.
Indirect Evidence. Google possesses a large and durable share in the text ads market, which is protected by significant entry barriers. In 2020, its market share in the text ads market was 88%, having grown steadily from 80% in 2016. FOF ¶ 192. Advertisers confirmed Google’s market dominance. They testified that their text ads spending allocation mirrors Google’s and Bing’s relative query volumes (i.e., 90% of spend on Google vs. 10% on Bing). FOF ¶ 232. They also emphasized that under no circumstances would they spend more than 10% of their text ads dollars on Bing, and that no other platforms were viable substitutes. FOF ¶ 233. As one advertising ​executive put it, once that 10% of ad spend on Bing is exhausted, “there’s [nowhere] else to go.” Tr. at 4875:19–4876:4 (Lim).
Barriers to entry are high. Because only GSEs can display text ads, new entrants face the same major obstacles as would the developer of a new GSE. Supra Section II.C.3. Those barriers are compounded by the additional costs and resources required to build an ad platform to deliver text ads. FOF ¶ 55 (Google spends $11.1 billion annually on search ads and $8.4 billion on search). Significant entry barriers thus insulate from erosion Google’s longstanding, dominant market share in the text ads market. Google has monopoly power in this market.
Direct Evidence. It is not necessary here to discuss the specific evidence Plaintiffs have offered to prove that Google priced text ads at supracompetitive levels (or Google’s responses to that evidence). It is sufficient at this point to observe what is undisputed, which is that Google does not consider competitors’ pricing when it sets text ads prices. FOF ¶ 267. That is “something a firm without a monopoly would have been unable to do.” Microsoft, 253 F.3d at 57–58 (making that observation as to Microsoft’s pricing of Windows); see also Am. Tobacco Co., 328 U.S. at 811 (“[T]he material consideration in determining whether a monopoly exists is not that prices are raised and that competition is actually excluded but that power exists to raise prices or exclude competition when it is desired to do so.”) (emphasis added).
Google responds that Microsoft’s observation does not apply here, because Google does not set ad prices, the auctions do. GTB at 31 n.1; GFOF ¶ 1144. But that contention overlooks that Google controls key inputs to the auctions that influence the ultimate price that advertisers pay. FOF ¶¶ 243–246. That Google makes changes to its text ads auctions without considering its rivals’ prices is something that only a firm with monopoly power is able to do. And, as will be ​discussed, Google in fact has profitably raised prices substantially above the competitive level. That makes “the existence of monopoly power clear.” Microsoft, 253 F.3d at 51.
The court thus concludes that Google has monopolized the market for general search text advertising.