TR Daily Biden Designates Khan as FTC Chair
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Wednesday, June 16, 2021

Biden Designates Khan as FTC Chair

Lina Khan took over as chair of the Federal Trade Commission yesterday after being sworn in as a commissioner shortly after being confirmed by the Senate (TR Daily, June 15).

"It is a tremendous honor to have been selected by President Biden to lead the Federal Trade Commission," said Ms. Khan. "I look forward to working with my colleagues to protect the public from corporate abuse. I’m very grateful to Acting Chairwoman [Rebecca Kelly] Slaughter for her outstanding stewardship of the Commission."

Ms. Khan’s FTC colleagues welcomed her appointment.

Ms. Khan was an associate professor at Columbia Law School; worked for the House Judiciary Committee’s antitrust, commercial, and administrative law subcommittee during its investigation of dominant online platforms during the last congress; and was a director-legal policy at the Open Markets Institute.

In the latter role she backed the Justice Department’s attempt to block AT&T, Inc.’s proposed acquisition of Time Warner, Inc. (TR Daily, June 12, 2018) and criticized a 5-4 Supreme Court decision ruling that antitrust cases involving two-sided transaction platforms should be viewed as a single market (TR Daily, June 25, 2018).

Ms. Khan is also a former legal adviser to FTC Commissioner Rohit Chopra. Mr. Chopra has been nominated to be director of the Consumer Financial Protection Bureau (TR Daily, Feb. 16). If he is confirmed for that position, the FTC would again be split with two Democrats and two Republicans.

She wrote a paper with Commissioner Chopra arguing for the FTC’s authority to conduct rulemakings on unfair methods of competition.

"I congratulate Chair Khan on her appointment to lead the FTC during this pivotal time for both consumer protection and anti-trust. I look forward to working together to put consumers first," said House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.). "The FTC is a critical agency and its work has never been more important. I’m committed to empowering the agency and ensuring it has the resources and authority it needs to fulfill its mission. I also want to thank Commissioner Slaughter for her dedication and leadership as Acting Chair of the FTC over the last few months. I look forward to continuing to work with her and the rest of the Commission to protect American consumers."

Rep. David Cicilline (D., R.I.), chairman of the House Judiciary Committee’s antitrust, commercial, and administrative law subcommittee, also welcomed Ms. Khan’s appointment.

"There has been inaction [on Big Tech competition issues] at the FTC … under both Democratic and Republican administrations," he said in response to a question at a press conference (see separate story).

While Congress has "a legislative responsibility to pass legislation that fixes" the antitrust issues, the FTC has enforcement responsibility, he continued. "I look forward to working very closely with Chairwoman Khan at the FTC," he said, adding, "I think we can expect a very different approach … to this monopoly moment at the FTC under Lina Khan."

He also said that he was "very proud that she was a part of the investigation" into dominant platform competition concluded by the subcommittee last year.

"CTIA and the wireless industry congratulate Lina Khan on her successful Senate confirmation and subsequent appointment as Chairwoman of the Federal Trade Commission. We look forward to working with the Chairwoman and wish her success in her new role," said CTIA President and Chief Executive Officer Meredith Attwell Baker.

Demand Progress Executive Director David Segal said, "Lina Khan has proven herself as one of the fiercest and most effective critics of Big Tech. She not only understands the threat these monopolies impose, but how to utilize the tools of government to hold them accountable and break them up."

But others criticized her appointment.

"Bad news. Chair Lina Khan will use #antitrust law as a Trojan horse to advance woke goals and policy priorities. Biden bureaucrats win, Americans lose," tweeted the Open Competition Center, a project of Americans for Tax Reform.

The Senate Commerce, Science, and Transportation Committee approved her nomination by voice vote last month, although Sens. Mike Lee (R., Utah), Dan Sullivan (R., Alaska), Cynthia Lummis (R., Wyo.), and Marsha Blackburn (R., Tenn.) asked to have their votes recorded against her (TR Daily, May 12).

Republicans questioned the experience of Ms. Khan, 32, noting that she earned her law degree only four years ago, as well as her antitrust views.

Sen. Lee, who is ranking member of the Senate Judiciary Committee’s competition policy, antitrust, and consumer rights subcommittee, said in a statement in March that Ms. Khan’s "views on antitrust enforcement are also wildly out of step with a prudent approach to the law. Nominating Ms. Khan would signal that President Biden intends to put ideology and politics ahead of competent antitrust enforcement, which would be gravely disappointing at a time when it is absolutely critical that we have strong and effective leadership at the enforcement agencies. This moment is too important for our antitrust enforcers to be learning on the job" (TR Daily, March 9).

Ms. Khan was questioned during her confirmation hearing on a journal article she wrote at Yale Law School on Amazon.com, Inc., in which she argued that in order to address market externalities, it may be necessary to consider other tools rather than antitrust enforcement such as common carrier regulation (TR Daily, April 21).

Sen. Lee asked her whether the consumer welfare standard for antitrust cases is "lacking." She replied, "In my academic work, I have questioned whether it’s a good proxy for competition."

Sen. Ted Cruz (R., Texas) noted that he believes the FTC "should be doing much more to rein in" big tech firms, citing the companies’ "blatant hubris" and "the risks posed by their censorship."

Ms. Khan said, "We’re continuing to see a whole range of risks," adding that big tech firms’ "ability to dominate one market makes it easier for them to expand into other markets." She also cited their "vacuuming of data." She added, "It seems like these are increasingly bipartisan concerns."

Sen. Jerry Moran (R., Kan.) noted that he has introduced a bill to require social media companies to disclose their content moderation policies and prohibit them from making false claims about content moderation. Ms. Khan said, "I think the information asymmetries here are so deep, and at the very least we need the FTC using its information collection authority" to help improve transparency.

Sen. Lee asked Ms. Khan whether she would recuse herself from FTC cases involving big tech companies, given that she worked on the House investigation into digital markets. Ms. Khan said that she has "none of the financial or personal ties" that are the basis of recusals. She added that she would consult with the agency’s ethics officer.

Ms. Khan also called the FTC’s existing rule implementing the Children’s Online Privacy Protection Act "a floor, not a ceiling." —Paul Kirby, [email protected], and [email protected]

MainStory: FTC FederalNews

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