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In a September 25, 2013 article, Law360 quoted Venable partner Len Gordon on the Federal Trade Commission (FTC) imposing limits on the recent merger of two consumer metrics providers, Nielsen Holdings NV and Arbitron Inc. Both companies track audience data for media outlets – in general, Nielsen covers television while Arbitron covers radio – and disclosed an idea to create a cross-platform audience measurement service which currently does not exist.

It’s the latter proposal that caused the FTC to strap conditions on the $1.26 billion merger. The antitrust agency claims that if the combined parties control this new cross-platform measuring tool, then it will stifle competition.

Commenting on the potential for future FTC regulation of technologies that do not exist, Gordon said, “I tend to think that this issue will arise again.” He added, “What you have to have for that is an existing technology where you've got some dominant players and those dominant players are going to merge, and the concern is some emerging technology where they appear to be the most likely principal competitors.”

Gordon concluded, saying, “This certainly will serve as a precedent if the FTC wants to do it again, but I think whether they do it again will be incredibly fact-dependent.”