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FTC’s New Rulemaking Group May Set Ambitious Agenda

Mayer Brown
31/03/2021

Authors:  Elspeth HansenWilliam H. Stallings and Christopher J. Kelly 

On March 25, 2021, Acting Chairwoman Rebecca Kelly Slaughter of the Federal Trade Commission announced the formation of a new rulemaking group to “build [the] Commission’s rulemaking capacity and agenda for unfair or deceptive practices or unfair competition.”[1]  After what she characterized as years of review of existing rules, Slaughter made clear she intends to reinvigorate the FTC’s rulemaking authority with a group “poised to strengthen existing rules and to undertake new rulemakings” in order to “deliver effective deterrence for the novel harms of the digital economy and persistent old scams alike.”[2]  Although the group may initially focus on issues such as data protection, it could also take an interest in enacting some of the reform proposals being considered by Congress.

In addition to possibly portending a spate of new regulations, the announcement frankly expressed the intention to use rulemaking to allow the FTC to impose substantial monetary penalties to deter misconduct, even if the U.S. Supreme Court curtails the FTC’s ability to seek monetary relief.[3]  Although the FTC has historically sought restitution in federal court based upon section 13(b) of the FTC Act, its authority to do so has been challenged in AMG Capital Management, LLC v. Federal Trade Commission.[4]  Following oral arguments before the U.S. Supreme Court in January, some commentators have expressed doubt that the Court will embrace the FTC’s interpretation of section 13(b).[5]  Accordingly, the FTC may seek to exercise its rulemaking authority to salvage its ability to seek monetary relief.

The March 25 announcement presented the new rulemaking effort as in line with the enactment of noncontroversial existing rules that provide “significant benefits to consumers,” like the requirement that optometrists give patients free copies of their prescriptions.[6]  However, in remarks the next day, Slaughter asserted her interest in enacting regulations concerning data privacy, and the use or misuse of user data.  Slaughter stated that she “care[s] very much” about the FTC “exploring” how to “move forward on data-related rulemaking.”[7]  She noted that, without a federal privacy law, states were acting “in the interim,” and warned that “the FTC will act in the interim as well.”[8] 

Notably, in discussing data-related rulemaking, Slaughter focused on both competition and consumer protection aspects of data regulation, stating that, beyond the privacy issues, she had “broader concerns about competition, about how data can then be collected and used and misused to target manipulative content or abusive content to people.”[9]  To the extent Slaughter sees rulemaking as a means of stepping in where the legislature has not acted on these issues, her rulemaking group could take up ideas that fail to gain sufficient traction in Congress.

In the case of antitrust law, for example, both chambers of Congress have an opportunity to consider whether to make significant changes to the existing statutory regime.  Senator Amy Klobuchar, chair of the Judiciary Subcommittee on Antitrust and Commerce, proposed legislation in February that, among other things, would lower the standard for challenging mergers, shift the burden to merging parties for certain kinds of transactions to prove their merger will not violate the law, prohibit “exclusionary conduct” that presents an “appreciable” risk of harming competition, and provide for civil penalties, in addition to existing criminal sanctions and civil treble damages, for antitrust violations.[10]  In the House of Representatives, Chairman David Cicilline (D-R.I.) of the House Judiciary Committee’s antitrust subcommittee issued a lengthy report concerning technology companies the report deemed “dominant platforms.” [11]  The Majority Staff proposed both platform-specific reforms, such as requiring data interoperability and shifting the burden to a “dominant platform” that makes an acquisition, and measures that would apply more generally, such as shifting the burden of proof to merging parties where the merger results in a firm with an “outsized” market share or a significant increase in concentration.[12]  

While some of these measures would be difficult to enact through regulation, others may appeal to the rulemaking group if they do not succeed in Congress.  Although we do not yet know what specific proposals will be championed by the new group, the Acting FTC Chair has signaled that she envisions a potentially expansive application of the FTC’s rulemaking powers.

[1]Press Release, “FTC Acting Chairwoman Slaughter Announces New Rulemaking Group” (Mar. 25, 2021), https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group (hereinafter, “FTC Press Release”).

[2] FTC Press Release.

[3] See FTC Press Release (“Especially given the risk that the Supreme Court substantially curtails the FTC’s ability to seek consumer redress under section 13(b), rulemaking is a critical part of the FTC’s toolbox to stop widespread consumer harm and to promote robust competition.”).

[4] No. 19-508 (U.S. Oct. 21, 2019).

[5] See, e.g., Ronald Mann, Argument analysis: Justices doubt FTC’s authority to compel monetary relief, SCOTUSblog (Jan. 14, 2021), https://www.scotusblog.com/2021/01/argument-analysis-justices-doubt-ftcs-authority-to-compel-monetary-relief/.

[6] FTC Press Release; FTC, Eyeglass Rule, https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/eyeglass-rule (last accessed Mar. 29, 2021).

[7] Michael Acton & Max Fillion, New FTC rulemaking group could pioneer rules marrying data, privacy, antitrust says acting chair, MLex Editorial (Mar. 26, 2021).

[8] Acton & Fillion.

[9] FTC Press Release.

[10] Competition and Antitrust Law Enforcement Reform Act of 2021, S.225, 117th Congress, §§ 4(b)(3), 9, 10 (2021).

[11] House Judiciary Committee, Subcommittee of Antitrust, Commercial and Administrative Law, Majority Staff Report and Recommendations, Investigation of Competition in Digital Markets, at 6 (2020) (“Cicilline Report”),  https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf?utm_campaign=4493-519 (last accessed Mar. 29, 2021).

[12] Cicilline Report at 384-86, 388, 393.