Antitrust Law Daily FTC chair signals change in announcing competition and consumer protection hearings
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Wednesday, June 20, 2018

FTC chair signals change in announcing competition and consumer protection hearings

By Jeffrey May, J.D.

Historically, when administrations change and new leadership arrives at the antitrust agencies, the agency heads speak of continuity. In 2001, then FTC Chairman Tim Muris pledged continuity. Eight years later, when Jon Leibowitz took the helm of the agency, he spoke of continuity in the staff and continuity in the bi-partisan approach taken by the Commission.

Today, FTC Chairman Joseph J. Simons questioned that notion. In prepared remarks announcing planned Competition and Consumer Protection Hearings, Simons said that it "would be a mistake to adopt a policy of continuity without some serious reflection and evaluation." The solution is conducting a series of hearings.

The hearings will begin in September 2018 and will extend through January 2019. The multi-day, multi-part public hearings will consider whether broad-based changes in the economy, evolving business practices, new technologies, and international developments warrant adjustments to competition and consumer protection law, enforcement priorities, and policy. They will be held both in Washington, DC and in conjunction with the FTC’s regional offices. It is anticipated that there will be 15 to 20 public sessions.

Pitofsky hearings. According to Simons, the hearings will be modeled after hearings conducted by the FTC when the agency was chaired by Bob Pitofsky in the 1990s. "Pitofsky re-invigorated the agency’s research and policy function with the 1995 "Global Competition and Innovation" hearings," Simons noted. He added that the new project "reflects the spirit, style, and, most importantly, broad scope of that effort."

"These hearings will review the state of antitrust and consumer protection law and policy as it has evolved and been implemented by the Commission in the nearly quarter-century since the Pitofsky Hearings," said Simons.

The hearings and public comment process will provide opportunities for FTC staff and leadership to listen to interested persons and outside experts representing a broad and diverse range of viewpoints, according to the agency announcement.

Topics. The FTC is inviting interested parties to submit written comments on the following topics in advance of the hearings:

  1. The state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings;
  2. Competition and consumer protection issues in communication, information, and media technology networks;
  3. The identification and measurement of market power and entry barriers, and the evaluation of collusive, exclusionary, or predatory conduct or conduct that violates the consumer protection statutes enforced by the FTC, in markets featuring "platform" businesses;
  4. The intersection between privacy, big data, and competition;
  5. The Commission’s remedial authority to deter unfair and deceptive conduct in privacy and data security matters;
  6. Evaluating the competitive effects of corporate acquisitions and mergers;
  7. Evidence and analysis of monopsony power, including but not limited to, in labor markets;
  8. The role of intellectual property and competition policy in promoting innovation;
  9. The consumer welfare implications associated with the use of algorithmic decision tools, artificial intelligence, and predictive analytics;
  10. The interpretation and harmonization of state and federal statutes and regulations that prohibit unfair and deceptive acts and practices; and
  11. The agency’s investigation, enforcement, and remedial processes.

A dedicated website for information about the hearings including the schedule as it evolves can be found at www.ftc.gov/ftc-hearings.

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