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With a purchase price of more than $3b a little regulatory scrutiny was to be expected for the pending DoubleClick and Google deal.  Yesterday the New York Times confirmed such scrutiny was ongoing, and official.  According to the article, the Federal Trade Commission (instead of the Justice Department) was conducting a review and had issued Google a Second Request which is a formal request for answers to a list of detailed questions.

The news or review, regardless of which agency administered it, was expected.  Google stated back in April when the deal was announced that they’d studied the anti-trust issues, expected regulatory scrutiny, and weren’t concerned. 

Given the stakes for the acquisition are high, and also the fact that, in this transaction, you have two companies coming together that each handle a tremendous volume of consumer behavior related information, a Second Request and a detailed review is not a shocker.

DoubleClick, which provides display advertising (video or graphic banners), displays its advertising across a wide range of independent web properties and through “cookies” has the capacity to track which sites a web surfer has visited. Google, in contrast, as the leading search engine, has the capacity to track what web searchers users have made. Google reportedly keeps that date for up to several years as well.  A combined company could pool this information and theoretically that could be problematic, so it warrants a check-up.

Realistically, however much privacy concerns irk and scare consumer watch groups, privacy concerns are not likely to do more than stimulate debate.  Both sites have clear privacy policies and neither is doing anything outside industry practice. 

DoubleClick is also no stranger to privacy concerns, and each time its been under a microscope, it’s ended up passing scrutiny.  Back in the 90s, for example, DoubleClick faced heavy privacy scrutiny when it bought catalog/direct-mail marketer Abacus Direct.   At the time consumer groups vocally feared a marriage of online and offline databases and resultantly nasty privacy-loss implications.  That deal went through … and it was far more threatening to privacy than this; and at more than $1.5b not a small deal either.   (Further, as Harvard law professor Andrew Gavil notes in the NYT article, as much as privacy is a concern of some of the consumer groups asking for a review, “Strictly speaking, privacy is not an antitrust issue.”)

From an antitrust/anti-competitive vantage point, which might pose real grounds for blocking the deal, an injunction is highly unlikely.  Given the high volume of acquisitions among major players in the online ad industry over the last month, not to mention the uncharted evolution of the global ad industry, the government will be hard pressed to argue this deal will have an unfair impact on competition and accordingly is not likely to stand in the way.   The fact that it is the F.T.C, and not Justice, reviewing the case further underscores that point in the eyes of some.

The review is necessary but it’s likely to be just a part of the administrative housekeeping necessary to close the deal, and not a real obstacle.  It’s hard to believe this deal will be stopped.

As a side note:  ironically, two of the large companies that actively spoke out in request for an antitrust review of the deal were Microsoft and AT&T.  Both have notable histories of being on the opposite side of anti-trust investigations (with those investigations fueled by competitors and government regulators alike).   AT&T is, in fact, currently the defendant in an anti-trust case filed by a phone conference calling company (Freeconference.com) which is claiming AT&T blocks its cellular customers from calling the phone numbers that allow Freeconference.com’s free conference calling services.

As a further side note: Abacus Direct, the cause of DoubleClick’s earlier privacy woes, never proved a good fit inside DoubleClick and was sold off to Epsilon Interactive in 2006